"  TRADER'S  AND  MECHANIC'S  LAWS  OF  TRADE."     /^^  ^ 


THE 


CREDITOR'S  &  DEBTOR'S 
ASSISTANT, 


OR    THE 


¥ODE  OF  COLLECTING  DEBTS:! 

IN    FIVE    PARTS. 

Part  I — Treats  of  tlie  Evidences  of  Debt,  in  relation   to? 
Trader's  Books,  Settlements,  Receipts,  Promissory  Notes,  BiUs  \ 
of  Exchange,  Drafts,  Checks,  Contracts  and  Agreements,  Piir-^ 
I  (chases,  Sales  and  Deliveiy  of  Goods,  Implied  Contracts,  Avoid-| 
\  ance  of  Contracts,  Interest,  when  it  may  be  claimed,  &c. 
I     Part  II — Directs  the  course  necessary  to  be  taken  for  En-| 
j  FORCING  THET  Payment  of  Debts,  by  Writs,  Attachment,  Trustee  | 
Process,  &;c. ;  and  the  nature  and  effect  of  tlie  Insolvent's  and 
I  Poor  Debtor's  Laws.  • 

I     Part  III — Relates  to  Proceedings  in  Special  Cases,  such  as 
j  Princiixil,  Factor,  and  Agent, — Partnei-ships,  Mortgages,  &c. 
■     Part  IV — Contains  Taxation  of  Costs  in  Civil  Cases  in  the 
'  Justices,  Common  Pleas,  and  Supreme  Courts, — Qualifications 
ujid  Liabihties  of  Attorneys,  Sheriffs,  &c. 

\  PiUiT  V. — In  this  Part  are  given  the  Leg^vl  Fees  of  Attorneys 
\  and  Law  Officers  of  tlie  Conmion wealth, — and  the  Rates  of 
\  Compensation  for  the  services  of  Attorneys. 


5      By  the  Author  of  the  "  Business  Man's  Assistant,"—"  Landlord'g  and  Tenant's 
\  Assistant," — "  Laws  of  the  Sea," — and  "  Shipper's  and  Carrier's  Assistant." 

\ 

\  PIUNTEU,  AND  FOR   SALE.    WHOLESALE    AND   RETAIL, 

I  By  I.  R.  BUTTS,   No.   2  SCHOOL  STREET,  BOSTON, 

\  AND  SOLD*BY  AGENTS  GENERALLY. 

%  1849.  A 


FOFTJLAB  AND  STANDARD  WOBES, 

PRINTED,    AND   SOLD   WHOLESALE    AND   RETAIL, 

BY  I.  R.  BUTTS,  No.  2  SCHOOL  STREET,  BOSTON. 

H.  LONG  &  BROTHER,  Agents  for  the  U.  States,  No.  46  Anu  St.,  New  York* 

T.  B.  PETERSON,  98  Chesnat  Street,  Philadelphia. 


[Sor.n,  WHOLESALE  AND  RETAIL,  By  Wm. Tatlor, i?a/<t»iore;  —  M.  Boullemet,  / 
Mobii^fi-J.  ^-  Morgan,  and  Weld  &  Co.,  New  Orleans:  —  Strattoh  &  ( 
Barward,  Cincinnati:  — Amos  Head  and  George  Gates,  Charleston,  S.  C. —  < 
C.  Hag  an  &  Co.,  Louisville,  Ky. :  —  D.  M.  Dewey,  Rochester,  N.  Y. :  —  W.  L.  S 
Palmer,  Syracuse,  N.  Y. :  —  A.  H.  &  C.  Burley,  Chicago,  ill. :  —  S.  A.  How- ) 
LAND,  Worcester: —  T.  Wiley,  Jr.,  Redding  &Co.,  Wm.  J.  Reynolds,  and  ) 
HoTCHKiss  &  Co.,  Boston :  — and  all  Booksellers  in  the  U.  S.  ( 


THE  , 

SHIPPER'S  AND  CARRIER'S  ASSISTANT,  \ 

AND  MARINE  AND  INLAND  INSURER'S  GUIDE.  \ 

This  book  contains  not  only  all  which  relates  to  the  Liabilities  of  Shippers  < 

and  Carriers,  but  a  full   statement  of  the  Principles  of  MARINE   INSUR-  < 

ANCE,  and  the  relation  in  which  the  Shipmaster  stands  both  to  the  Owners  ) 

^  and  Insurers  :  —  Also,  the  law  relating  to  Consignor  and  Consignee  ;  and  to  I 

Collisions  at  sea,  and  in  harbors  and  rivers.  \ 

It  presents  a  mass  of  information  that  entitles  it  to  a  place  in  every  Marine  \ 
insurance  Office,  Counting  House,  and  Shipper's  and  Carrier's  Office,  where  { 
it  would  be  found  useful  as  a  Book  of  Reference  on  innumerable  occasions.  ' 
It  should  also  be  in  the  hands  of  Steamboat  Captains,  and  every  person  i 
engaged  in  Shipping  or  Transporting  Goods  or  Passengers,  from  place  to  place,  (_ 
'  on  Ocean,  Lake,  River,  or  in  City,  Town  or  Country.  { 

The  following  is  a  portion  of  its  Contents  :—  Who  are  Common  Carriers  .'  J 
Duties  of  Common  Carriers  ;  Liabilities  of  Carriers  for  the  acts  of  their  ( 
Agents ;  do.  as  Partners :  Carriers  by  Land  ;  by  Water  ;  Carriers  of  Passen-  ■, 

?ers;  by  Railroad  ;  by  Steamboat;  Rights  of  Carriers  ;  Rights  of  Passengers ;  j 
.iabilities  for  Baggage  of  Passengers  ;  Duties  of  Carriers  by  Water  ;  Com-  ( 
mencementof  Voj'age  ;   Course  of  Voyage;  Liabilities  by  Water;  Perils  of; 
the  Sea;  by  Fire,  &c. ;  Duty  to  sail  on  appointed  Day;  Limitation;  Delivery  ) 
I  of  Goods ;  Notice  ;  Effect  of  Notice  ;  Release  ;  Lien  ;  Charges  ;  Liabilities  of  ; 
'Consignor  and  Consignee;    Stoppage   in  Transitu,   &c.   &.c.  —  Marine  In-; 
\surance: — What   can  or  cannot  be   insured;    Seamen's   Wages;  Interest ;  v 
>  Freight,  &c. ;  Representation;  Concealment;  Disclosures;  Warranties;  De- 
\  viations ;  Succoring  ;  Repairs  ;  Collisions ;  General  Average  ;  Contribution  ; ' 
Total  Loss;   Abandonment;    Notice  of  do.,  &c.  &c.  —  Inland  Insurance.:'. 
Steamboats,  Deviation  of;  Flat-boats.  —  Also,  Forms  oj  Notice  of  Abandon-  \ 
ment;  Assignment  of  Policy  ;  do.  of  Sean)an's  Wages;  Power  of  Attorney/ 
from  a  Sailor  to  his   Wife   to  receive  his  Wages  ;  Surveys  ;  Adjustment  of? 
General  Average;   Protest;  and   the   principles  of  law  in  relation  to  Life,' 
Health  and  Fire  Insurance.  j 

The.undersigned having  examinedthe  "  Shippek's  and  Cabriek's  Assistant,  akd  Marine  ' 
AND   Inland  Insurer's  Guide,"'  recommend  it  to  Sliippers,  and  those  engaged  in  trans- S 

porting  goods,  and  to  insttrers,  as  a  ttse/iU  assistant  in  their  business  relations : —  ^■ 

Joseph  H  Adams,  Pres.  New  Wright,  Priest  &,  Co.,  West]  Ifamden&  Co.,  Express,         J 

E.  Mutual  Marine  Ins.  Co.,'     India  Goods,  !  VViggin  &  Morse,  Merchants,  ^ 

Judson  &.  Co.,  Merchants,  ,  Lombard  &  Hall,  Merchants. j  Capt.  John  Williams,  Presi- ) 
H.  G  Andrews,  Merchant,     I  Howes  &  Crowell,        do.  dent  of  Coaster's  Ins.  Co.,    > 

C.  C.  Gilbert,  do.  D.  C.  Clark  &  Co.,  Baker  &.  Morrell,  Me»hanis,  ) 

Geo.  L.  Ward,         do.  A.  S.  &  W.  E.  Lewis.  Mer-j  Geo.  Winslow,  Merchant.       ) 

Wm.  C.  Barsiow,  Treasurer      chants,  Caleb  S.  Carter,  Marine  In- ) 

East  Boston  Company,        I  John  S.  Tyler,  Ins.  Broker,    !     surance  Agent.  S 

[  See  3d  awl  4tk  pages  of  cover.     ' 


^ 


TRADER'S  &'  MECHANIC'S  LAWS  OP  TRADE. 
THE 

CREDITOR'S  &  DEBTOR'S 
ASSISTANT, 

OR   THE 

MODE  OF  COLLECTING  DEBTS : 

IN   FIVE   PARTS. 

PART  I.  EVIDENCES  OF  DEBT  :  BOOK  ACCOUNTS,  BILLS  OP 
EXCHANGE,  PROMISSORY  NOTES,  CONTRACTS  AND  AGREE- 
MENTS, INTEREST,  LIMITATIONS  OF  ACTIONS,  &C.  &C, 

PART  U.  MODE  OF  ENFORCING  THE  PAYMENT  OF  DEBTS  : 
CIVIL  PROCESS,  WRITS,  INSOLVENT  LAW,  &C.   &C.   &C. 

PART  III.  SPECIAL  LAWS  :  PRINCIPAL,  FACTOR  AND  AGENT, 
LIMITED   PARTNERSHIP,    MORTGAGES,    &C.    &C.    &C. 

PART  TV.  TAXATION  OF  COSTS  IN  CIVIL  ACTIONS  IN  THE 
JUSTICES,    COMMON   PLEAS,    AND   SUPREME   COURTS. 

PART  V.  LEGAL  FEES  OF  ATTORNEYS  AND  LAW  OFFICERS 
OF   THE   COMMONWEALTH,    &C.    &C. 


By    I.    R.    BUTTS, 

Author  of  the  "Business  Man's  Assistant"  —  "  Landlord's  and  Tenant's 

Assistant"  —  "  Shipper's  and  Carrier's  Assistant"  —  and 

"The  Laws  of  the  Sea." 


BOSTON : 

PKINTED  AND  PTTBLISHED  BY  I.  E.  BUTTS, 

No.  2  School  Street, 

FOR   SALE   BY   HIM,   WHOLESALE   AND   RETAIL,    AND    BY 
AGENTS    GENERALLY. 
1849. 


Entered  according  to  Act  of  Congress,  in  the  year  1849, 

BY    I.   R.   BUTTS, 

in  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 


CONTENTS. 


PART   I. EVIDENCES    OF   DEBT. 

Book  Accounts,  Settlements,  and  Receipts, 5 

Bills  of  Exchange,  Promissory  Notes,  Drafts  and  Checks,  .  .  7 
Effect  of  taking  a  negotiable  note  or  bill  after  it  is  due — indorsees 
of  notes  payable  on  demand — presentment  for  acceptance — accept- 
ance— wliat  notice  of  the  non-acceptance  of  a  bill  must  be  given — 
liability  of  acceptor — acceptance  for  honor — indorsement — pre- 
sentment for  payment — what  will  excuse  the  non-presentment — 
days  of  grace— notice  to  indorsers— notice—protest,  when  necessary. 

Damages  on  Protested  Bills, 24 

On  bills  payable  without  the  United  States — beyond  Cape  of  Good 
Hope — within  U.  S. — within  this  State. 

Usury,  Laws  Of, — What  Constitutes, 25 

Contracts  and  Agreements, 25 

Who  is  capable  of  making — how  can  action  be  brought — must  be  in 
writing — void  without  consideration,  unless  under  seal — promise 
to  pay  the  debt  of  another,  when  binding. 

Unwritten  Contracts, 30 

Implied  Contracts,  (or  where  there  is  no  special  agreement),  31 

Sale  and  Conveyance  of  Real  Estate, 33 

Law  affords  no  redress  for  oversights — misrepresentation  vitiates  sale. 

Purchase,  Sale,  and  Delivery  of  Goods, 33 

Contract  not  binding  for  goods  under  the  value  of  $50,  unless  deliv- 
ered within  one  year — when  bargain  is  struck — when  sale  is  com- 
plete— the  earnest — the  delivery — time  of  delivery — neglect  of— de- 
livery to  an  agent — where  an  article  is  to  be  manufactured — what 
is  sufficient  as  a  memorandum — exchanges. 

Warranty  of  Goods,  Express  and  General, 35 

Where  goods  are  sold  by  sample — latent  defect  in  sample. 

Avoidance  of  Contract, 36 

If  vendee  does  not  come  and  pay  for  goods — when  contract  is  in  vio- 
lation of  law — when  obtained  by  deception — when  persons  are 
employed  to  bid  at  auctions — in  restraint  of  trade — where  assign- 
ment is  fraudulent — where  seller  misleads  the  purchaser. 
Payment,  General  Usage  where  no  Specific  Stipulation  is  made,  38 

Interest,  When  it  may  be  Claimed,  how  computed, 39 

Limitations  of  Actions, 41 

What  debts  can  be  collected  within  six  years — ■what  within  two — what 
within  twenty — exceptions — effect  of  part  payment. 

PART   II. MODE   OF   ENFORCING   PAYMENT   OF    DEBTS. 

Mode  of  Procedure  in  Civil  Actions, 43 

General  course  of  procedure  from  the  sending  of  the  letter  of  attor- 
ney, to  rendition  of  judgment. 

Writs,  Attachments,  Arrest,  Judgment,  and  Execution,  ...  45 
Justice's  jurisdiction — appeals — writs — how  framed — articles  ex- 
empt from  attachment — bail  bond — how  long  after  attachment 
goods  may  be  held — execution — renewal  of  execution — time  with- 
in which  judgment  may  be  obtained — when  goods  can  be 
sold — when  they  may  be  redeemed — when  real  estate  may  be 
sold — when  it  may  be  redeemed. 

Trustee  Process, 49 

Trustee  examined  on  oath— when  liable  for  non-delivery  of 
goods — liability  of  trustee  to  pay  costs. 

Replevin,  How  Taken  when  Gootls  are  Unlawfully  Detained,  53 

Tender,  How,  When,  and  in  What  Manner  made, 54 


4  CONTENTS. 

Set-off,  When  oire  Demand  may  be  Set-off  against  Another,  55 

Unlawful  Attachment  and  Arrest, 57 

Insolvent  Laws, 58 

Who  may  pethion — in  what  cases  creditor  may  force  debtor  into  in- 
solvency— duly  of  assignee — what  debts  may  be  proved — discharge 
of  debtor,  what  may  prevent — debtor's  claim  for  necessaries. 
Imprisonment  for  Debt,  Poor  Debtor's  Oath, 64 

When  debtor  may  be  arrested — bond — prison  limits — liberty  of  the 
yard — debtor's  oath — mode  of  examination. 

PART    III. GENERAL   AND   SPECIAL    LAWS. 

Principal,  Factor,  and  Agent, 69 

What  constitutes  a  factor — when  holding  a  del-credere  commis- 
sion— how  responsible — when  liable  for  loss — when  to  remit  to 
principal — law  of  factors  and  agents  enacted  by  the  Legislature  of 
Massachusetts,  and  approved  by  the  Governor,  May  2,  1849. 

General  Partnership, 72 

What  constitutes  a  partnership — liability  of  partners — dissolution  of 
do. — limited  partnership — how  associated — certificate  of  partner- 
ship— capital  stock— insolvency — dissolution. 

Mortgaged  Real  Estate, 75 

Conveyance  of  estate — foreclosure  of  mortgage — power  to  sell 

Mortgaged  Personal  Estate, 76 

Where  must  be  recorded — foreclosing  of  mortgage — attaching  do.         • 

General  Lien, 77 

A  right  which  one  person  has  to  detain  the  property  of  another  on 
account  of  labor — lien  of  mechanics,  shipwrights,  and  others — lien 
law  of  Massachusetts  for  building  or  repairing — petition  for  sale 
of— on  ships  for  materials,  provisions  and  stores — how  long  time 
to  continue. 

Arbitration  by  Reference, 81 

Form  of  submission — meeting  of  arbitrators — reporting  award 

Acknowledgment  of  Debt, 82 

Form  of  acknowledgment  by  debtor — by  power  of  attorney. 
Rights  and  Liabilities  of  Hotel  and  Boarding- House  Keepers,  84 

Legal  Rights  of  Married  Women, 87 

Wife  may  retain  her  property — may  receive  property  by  will  or 
deed — may  sue  and  be  sued — to  whom  her  properly  goes  at 
death — nght  of  married  women  to  personal  estate  of  husband  not 
disposed  of  by  will, right  to  administer,right  to  dower,right  to  wages. 

PART    IV. TAXATION    OF    COSTS    IN    CIVIL    ACTIONS. 

Party  recovering  Costs, 91 

Costs  Taxed  in  Justices'  Court, 93 

PIaintift""s  costs  where  defendant  is  defaulted — where  the  case  is 
tried — defendant's  costs — trustee's  costs. 

Costs  Taxed  in  Court  of  Common  Pleas, 94 

Plaintiff's  costs — non-suit  when  defendant  prevails — trial  by  jury. 

Costs  Taxed  in  Supreme  Court, 98 

Qualificatiotis  and  Liabilities  of  Attorneys  and  Sheriffs,  ...  99 

PART   V. LEGAL   FEES   OF   ATTORNEYS  AND   LAW  OFFICERS. 

Fees  of  Attorney,  Of  Justice  of  the  Peace,  Of  Commis- 
sioners in  Chancery,  Of  Clerks  of  the  Supreme  and  Com- 
mon Pleas  Courts,  Of  Sheriffs,  Of  Constables,  Of  Jurors, 
Witnesses,  &c.,  Of  Town  Clerks,  Of  Register  of  Deeds, 
Notaries  Public,  Of  Requirements  of  Public  Ollicers,  and 
Penalty  for  Extortion,     101 

JRates  of  Compensation  for  Services  of  Attorneys, 107 


"srjTT  ^.-i,-"- 


PART.    I. 

EVIDENCES   OF  DEBT. 


BOOK  ACCOUNTS,   HOW  PROVED. 

Original  entries  in  shop  books,  or  the  original  me- 
moranda of  charges  by  a  party,  though  not  kept  regu- 
larly in  the  manner  of  a  day-book,  are  competent 
evidence,  with  the  suppletory  oath  of  the  party,  if 
living,  to  prove  the  items  charged.  (2  Mass.  217  ; 
13,  455.)  The  creditor  is  sworn  to  make  true  an- 
swers to  questions  relating  to  his  books,  and  is  then 
required  to  state  if  they  are  his  original  entries,  and 
were  made  at  or  about  the  time  they  purport,  and  if 
they  are  true.  Suspicious  marks  on  the  face  of  a  book 
will  prevent  its  being  received. 

But  every  memorandum  of  a  shopkeeper  or  laborer 
will  not  be  admitted  as  his  book.  Before  the  books  of 
the  party  can  be  admitted  in  evidence,  they  are  to  be 
submitted  to  the  inspection  of  the  court ;  and  if  they  do 
not  appear  to  contain  the  first  entries  or  charges  by  the 
party,  made  at  or  near  the  time  of  the  transactions  to 
be  proved,  and  to  have  been  honestly  and  fairly  kept, 
they  are  excluded. 

Where  entries  were  first  made  mv  a  slate,  or  cart, 
and  afterwards  transferred  upon  a  book,  kept  in  the 
ledorer  form,  such  book  was  admitted  as  evidence  to 
prove  the  items  charged.*  (13  Mass.  427)  So,  where 
it  appeared  to  be  the  custom  of  a  butcher,  in  carrying 
around  meat  to  his  customers,  to  make  chalk  scores  on 
the  cart,  stating  to  whom  the  meat  was  sold,  and  the 
quantity  and  price,  from  which  scores,  on  the  return  of 
the  cart  on  the  same  day,  and  before  it  went  out  again, 
it  was  the  custom  for  his  partner  to  make  entries  in  the 

L.  T.  1* 


6  BOOK    ACCOUNTS,    HOW    PROVED. 

books  of  original  entries,  they  were  admitted  as  compe- 
tent testimony  to  prove  the  charges.   (12  Pick.  139.) 

If  the  party  is  dead,  his  books,  though  rendered  of 
much  less  weight  as  evidence,  may  still  be  offered  by 
the  executor  or  administrator,  he  making  oath  that  they 
came  to  his  hands  as  the  genuine  and  only  books  of 
account  of  the  deceased  ;  that  to  the  best  of  his  know- 
ledge and  belief  the  entries  are  original  and  contem- 
poraneous with  the  fact,  and  the  debt  unpaid  ;  with 
proof  of  the  party's  handwriting. 

If  the  clerk  who  made  the  entries  is  dead  or  insane, 
the  book  is  admissible  upon  proving  his  handwriting. 
(3  Pick.  96.) 

Where  a  tradesman's  day-book  contains  marks  which 
show  that  the  items  have  been  transferred  to  a  ledger, 
the  ledger  must  be  produced,  that  the  other  party  may 
have  advantage  of  any  items  entered  therein  to  his 
credit.  (2  Mass.  5G9.) 

A  tradesman's  books  will,  in  general,  be  very  effect- 
iial  evidence  against  himself. 

^t-off  of  mutual  demand. — (See  title  "  Set-off.") 

Payments  of  sums  of  money  over  forty  shillings  can- 
not be  proved  by  the  books.  —  This  is  an  important  fact 
t.o  be  known,  as  it  not  unfrequently  happens,  that  a 
person  pays  money  to  his  workmen,  taking  no  receipt 
therefor,  and  having  no  other  evidence  of  the  fact  of 
payment,  but  his  charge  on  his  books.  The  books  will 
not  be  evidence  of  any  cash  payment  exceeding  forty 
shillings,  (86  66§.) 

Charges  upon  a  physician's  bill  for  "  visits  and  medi- 
cines" are  sufficiently  specific,  although  the  quantity 
and  quality  of  the  medicines  are  not  designated — it  not 
appearing  that  they  varied  from  the  usual  mode  adopted 
by  physicians  in  making  charges. 

Accounts. — Merchants  usually  prefix  the  initials  E. 
E.  (for  errors  excepted)  to  their  signature  to  accounts  ; 
but  the  omission  of  those  letters  forms  no  bar  to  the 
subsequent  correction  of  errors. 

The  settlement  and  discharge  of  an  account  for 
money  lent,  and  advanced,  is  no  bar  to  a  claim  for 
any  other  demand,  not  included  in  the  settled  account. 

A  settled  account  is  only,  on  thefrst  view,  evidence 


BILLS    OF   EXCHANGE,   PROMISSORY   NOTES,    kC.        7 

of  its  correctness.  It  may  be  impeached  by  proof  of 
unfairness,  mistakes  or  fraud  ;  and  if  it  be  confined  to 
particular  items  of  account,  it  concludes  nothing  in 
relation  to  other  items  not  stated  in  it. 

Cross  accounts,  when  of  long  standing  and  compli- 
cated, are  fruitful  sources  of  disputes.  They  should 
always  be  referred  to  arbitration.  [See  title  "  Arbi- 
tration."'^ 

Receipt,  is  a  document  acknowledging  that  he  who 
signs  it  has  received  a  sum  of  money,  or  any  subject  of 
claim,  and  relieving  the  party  to  whom  the  acquittance 
is  granted. 

Though  a  receipt  of  money  is  strong  evidence  of  its 
having  been  paid,  yet  it  is  not  conclusive,  and  may  be 
avoided,  by  showing  that  the  money  has  not  been  re- 
ceived, or  that  it  was  given  under  misrepresentation. 

A  general  receipt,  or  acquittance  in  "  full  of  all  de- 
mands," is  held  to  discharge  all  debts,  except  such  as 
are  on  speciality,  as  bonds,  bills,  &c.,  which  can  only 
be  met  by  some  speciality  of  equal  force,  such  as  a 
general  release. 


BILLS  OF  EXCHANGE,   PROMISSORY  NOTES,  DRAFTS 
AND  CHEiCKS.* 

A  Bill  of  Exchange  is  a  written  order  or  request, 
and  a  Promissory  Note  a  written  promise,  by  one  person 
to  another,  for  the  payment  of  money,  absolutely,  and 
at  all  events.  No  set  form  of  words  is  required.  A 
promise  to  deliver,  or  to  be  accountable,  or  to  be 
responsible  for  so  much  money,  is  a  good  bill  or  note ; 
but  it  must  be  exclusively  and  absolutely  for  the  pay- 
ment of  money. 

He  who  makes  a  bill  is  called  the  "  drawer  "  the 
person  to  whom  it  is  addressed,  the  "  drcnoce"  and  the 
party  in  whose  favor  it  is  made,  the  "  ■payee."  If  the 
drawee  accept  the  bill,  he  is  termed  the  "  acceptor ;" 
when  a  bill  is  indorsed,  the  person  indorsing  is  called 
the  "  inclorser,"  the  person  to  whom  it  is  indorsed, 
the  "  indorsee." 

*  See  Forms  of  Notes,  Bills  of  Exchanpe,  Receipts,  &c.,  In  "  Business 
Man's  Assistant,"  a  work  which  every  person  who  transacts  any  kind  of 
btisiness  should  possess. — Price  25  cents. 


8        BILLS    OF   EXCHANGE,    AND    PROMISSORY    NOTES. 

The  person  who  makes  a  note  is  called  the  "maker" 
and  the  person  to  whom  it  is  payable,  the  "payee;'' 
and  the  terras  "  indorser,"  and  "  indorsee,"  are  used 
as  in  bills. 

When  and  between  what  pai'ties  the  consideration  of 
a  negotiable  note  or  bill  may  be  inquired  into. — It  is 
usual  to  insert  the  words  value  received,  in  a  bill  or 
note,  but  they  are  not  necessary,  and  value  is  implied 
in  every  bill,  note,  acceptance,  and  endorsement. 

We  shall  see,  in  another  part  of  this  work,  that  a 
contract  is  void,  unless  it  is  made  for  a  good  or  valu- 
able consideration.  In  the  case  of  negotiable  notes,  and 
bills  of  exchange,  the  law  always  presumes  them  to  be 
founded  upon  a  valid  consideration,  and  no  proof  of  a 
consideration  is  required.  As  between  the  immediate 
parties  to  a  bill  or  note,  the  consideration  may,  how- 
ever, be  always  inquired  into. 

Thus,  in  an  action  by  the  drawer  against  the  accep- 
tor, or  by  the  payee  against  the  maker,  the  acceptor  or 
the  maker  may  show  that  the  bill  was  accepted,  or  the 
note  made,  without  any  consideration,  and  it  will  be  a 
good  defence.to  the  action. 

»  So,  in  an  action  by  an  indorsee  against  the  person 
indorsing  the  note  to  him,  that  person  may  show  that 
the  note  was  indorsed  to  such  indorsee  without  any 
consideration,  and  it  will  be  a  good  defence. 

But  where  the  holder  of  a  bill  or  note  received  it 
innocently,  in  the  course  of  business,  for  a  valuable 
consideration,  and  before  it  was  due,  he  may  collect  it 
of  any  of  the  prior  parties  to  the  bill  or  note,  notwith- 
standing it  may  have  been  originally  issued  without 
any  consideration,  or  fraudulently,  or  that  no  consid- 
eration had  passed  between  fhe  prior  indorsers,  or  that 
the  prior  indorsements  were  illegal,  or  though  it  may. 
have  come  to  him  from  a  person  who  had  stolen  or 
robbed  it  from  the  true  owner. 

Where,  however,  it  is  proved  that  a  note  got  into 
circulation  fraudulently,  the  holder  will  be  obliged  to 
show  how  he  came  by  it,  and  that  he  gave  a  valuable 
consideration  for  it.   (5  Pick.  412.). 

>  If  an  indorsee  receive  a  note  under  circumstances 
which  may  reasonably  excite  suspicion  that  it  was  not 


PRESENTMENT    FOR    ACCEPTANCE.  9 

good,  he  ought,  before  he  takes  it,  to  inquire  into  the 
validity  of  the  note,  and  if  he  does  not,  he  takes  it 
subject  to  any  legal  defence  which  might  be  made 
against  a  recovery  by  the  promisee.  (6  Pick.  259.) 

Effect  of  talcing  a  negotiable  note  or  hill  after  it  is 
due. — Where  a  party  takes  a  note,  even  for  value,  aftei* 
it  has  been  dishonored,  or  is  overdue,  he  takes  it  sub- 
ject to  all  the  equities  which  properly  attach  thereto 
between  the  antecedent  parties. 

Thus,  in  an  action  by  the  indorsee  of  a  note  over- 
due against  the  maker,  the  maker  may  have  the  bene- 
fit of  a  set-ofF  against  the  payee,  which  accrued  before 
notice  to  him  of  the  transfer.  (5  Pick.  312.)  So  he 
may  prove  payments  in  part,  or  in  whole,  before  the 
indorsement.  (21  Pick.  193.)  So  he  may  prove  fraud 
in  its  inception,  or  want  for  a  failure  of  consideration,  or 
that  it  was  given  for  an  illegal  consideration,  &c. 

Endorsees  of  notes  payable  on  demand. — In  Massa- 
chusetts, in  any  action  upon  a  promissory  note  payable 
on  demand  by  an  endorsee  against  the  promiser,  any 
matter  shall  be  deemed  a  legal  defence  which  would  be 
a  legal  defence  to  a  suit  on,  the  same  note,  if  brought 
by  the  promisee.  (Laws,  1839,  c.  121.) 

Note  lost — If  a  note  or  bill  of  exchange  be  lost,  and 
the  party  prove  the  fact  on  his  oath,  he  may  still  re- 
cover upon  it;  but  if  negotiable  he  may  be  required  to 
tender  a  bond  of  indemnity  both  to  the  maker  and  in- 
dorser  against  all  claims,  that  may  afterwards  arise, 
from  such  lost  instrument. 

A  bank  receiving  for  collection  a  bill  of  exchange 
drawn  here  upon  a  person  in  another  state,  is  liable  for 
any  neglect  of  duty  in  its  collection,  arising  from  its 
own  officers,  correspondents  or  agents.  (22  Wend.  215.) 

A  memorandum  written  on  a  note,  in  these  words, 
"  for  value  received  I  hereby  acknowledge  this  note  to 
be  due,  and  promise  to  pay  the  same  on  demand,"  and 
signed  in  the  presence  of  an  attesting  witness,  prevents 
operation  of  the  statute  of  limitations.   (I  Met.  21.) 

PRESENTMENT    FOR    ACCEPTANCE. 

Presentment  of  bills  for  acceptance. — Bills  payable  at 
sight,  or  at  so  many  days  afar  sight,  or  after  demand 


10  PRESENTMENT    FOR    ACCEPTANCE. 

must  be  presented  to  the  drawee  for  acceptance  ;  oth- 
erwise the  time  of  payment  would  never  arrive.  But 
bills  payable  on  demand,  or  payable  at  a  certain  num- 
ber of  days  after  date,  or  after  any  other  certain  event, 
need  not  be  presented  for  accejitance  at  all ;  but  only 
for  payment.  It  is,  however,  certainly  advisable  in 
all  cases  to  endeavor  to  get  the  bill  accepted.  And 
though  the  owner  is  not  bound  to  present  the  bill  pay- 
able at  a  day  certain,  for  acceptance  before  the  day, 
the  agent  employed  to  collect  the  bill,  or  to  get  it  ac- 
cepted and  paid,  must  act  with  due  diligence  to  have 
the  bill  accepted  as  well  as  paid. 

A  bill  payable  at  sight,  or  so  many  days  after  sight, 
as  well  as  a  bill  payable  on  demand,  must  be  present- 
ed in  a  7-casonahle  time,  or  the  holder  will  have  to  bear 
the  loss  proceeding  from  his  default. 

In  all  cases,  where  a  bill  is  presented,  and  accept- 
ance is  refused,  it  is  dishonored,  and  notice  must  be 
given  to  the  drawer  and  indorsers  in  order  to  charge 
them ;  and  it  makes  no  difference  in  this  respect, 
whether  the  bill  be  payable  at  sight,  or  at  a  day  certain. 

Presentment  for  acceptance,  by  whom,  tchere,  and  to 
whom  to  be  made. — In  general,  bills  should  be  present- 
ed by  the  holder  or  his  authorized  agent.  But  though 
the  drawee  may  not  be  bound  to  accept  a  bill  present- 
ed by  a  person  not  having  proper  authority  to  hold  the 
bill,  yet  if  he  does  accept  it,  such  acceptance  will  in- 
ure to  the  benefit  of  the  true  holder. 

A  bill  should  be  presented  for  acceptance  at  the  resi- 
dence or  usual  place  of  business  of  the  drawee,  with- 
out regard  to  the  place  where  it  is  drawn  payable,  be- 
cause the  former  is  supposed  to  be  the  place  where  he 
is  to  be  found  to  accept,  and  the  place  of  payment  is 
not  material  until  after  acceptance.  If  the  drawee  is 
not  to  be  found  at  the  place  to  which  the  bill  is 
directed,  he  having  never  lived  there,  or  having  removed 
from  there,  the  holder  should  endeavor  to  ascertain  the 
actual  domicil  of  the  drawee,  and  present  the  bill  at 
that  place.  If  the  holder  is  unsuccessful  in  his  inqui- 
ries, he  may  protest  the  bill  as  dishonored. 

The  absence  from  his  home,  of  the  drawee  of  a  bill 
payable  at  a  time  certain  after  date,  when  the  holder 


ACCEPTANCE.  11 

of  the  bill  or  his  agent  calls  with  it  for  acceptance,  is  not 
a  refusal  to  accept,  which  requires  the  holder  to  give 
notice  to  the  drawer  and  indorsers ;  although  such  ab- 
sence, when  the  bill  is  due,  is  a  refusal  to  pay,  and  au- 
thorizes a  protest. 

The  presentment  should  be  to  the  drawee  himself, 
or  to  his  authorized  agent ;  and  if  he  refuse,  and  the 
bill  has  been  addressed  to  another  person,  then  pre- 
sentment must  be  made  to  that  person ;  otherwise  the 
drawer  or  indorsers  will  not  be  chargeable.  If  the  bill 
has  been  addressed  to  two  or  more  persons  not  in  part- 
nership, it  is  said  that  it  must  be  presented  to  each. 

If  the  drawee  has  left  the  country,  it  will  be  suffi- 
cient to  present  the  bill  at  his  house,  unless  he  has  a 
known  agent,  when  it  should  be  presented  to  him.  If 
on  presentment  it  appear  that  the  drawee  is  dead,  the 
holder  should  inquire  after  his  personal  representative, 
and,  if  he  live  within  a  reasonable  distance,  should  pre- 
sent the  bill  to  him. 

Presentment  should  in  all  cases  be  made  during  the 
usual  hours  of  business  ;  and  it  should  not  be  made  on 
days  s6t  apart  by  the  laws  of  the  country  for  religious 
or  public  purposes.  The  drawee  should  accept  or  re- 
fuse a  bill  as  soon  as  it  is  presented  to  him ;  but  if  he 
does  not  determine  immediately,  it  is  usual  to  leave  it 
with  him  twenty-four  hours  to  consider  whether  he  will 
accept  it  or  not.  But  in  this  the  holder  may  use  his 
own  discretion. 

It  is  not  incumbent  on  the  endorser  to  inform  the 
holder  where  the  maker  is  to  be  found. 

ACCEPTANCE. 

Of  the  acceptance. — The  acceptance  may  be  verbal, 
or  it  may  be  written,  and  it  may  be  general  or  special. 
If  a  bill  comes  into  the  hands  of  a  person  with  verbal 
acceptance,  and  he  takes  it  in  ignorance  of  such  ac- 
ceptance, he  may  avail  himself  of  it  afterwards. 

An  absolute  acceptance  is  an  engagement  to  pay  the 
bill  according  to  its  tenor,  which  is  done  by  the  drawee 
writing  '*  Accepted,"  and  subscribing  his  name  at  the 
bottom  or  across  the  bill.  If  a  bilL  is  made  payable 
after  sight,  the  date  of  acceptance  should  appear  thus, 
"  Accepted,  A.  B  ,  April  20,  1849," 


}f\  ACCEPTANCE. 

Any  acceptance  varying  the  absolute  terms  of  the 
bill,  either  in  the  sum,  the  time,  the  place,  or  the  mode 
of  payment,  is  a  special  or  conditional  acceptance, 
which  the  holder  is  not  bound  to  receive;  but  if  he. 
does  receive  it,  the  acceptor  is  liable  only  according  to 
the  terras  of  his  acceptance. 

The  holder,  as  just  stated,  is  not  bound  to  take  a 
qualified  acceptance,  but  is  entitled  to  have  the  bill 
accepted  absolutely  and  unconditionally,  as  it  is  drawn. 
He  may,  however,  at  his  own  risk,  take  a  special  ac- 
ceptance ;  but  he  ought  to  give  immediate  notice  to 
all  the  parties,  and  if  he  omits  so  to  do  he  discharges 
them  ;  and  it  would  seem,  that  if  he  wished  to  hold 
the  other  parties  to  the  bill,  he  should  have  it  protested 
as  dishonored,  unless  they  assent  to  the  conditional  ac- 
ceptance. 

A  promise  to  accept  a  bill  not  yet  drawn,  shown  to 
a  third  person,  who,  upon  the  faith  of  such  promise, 
takes  it  for  a  valuable  consideration,  is  in  law  an  ac- 
ceptance of  such  bill,  when  drawn ;  provided  in  the 
letter  in  which  the  promise  is  made,  the  bill  to  be 
drawn  is  described  in  terms  not  to  be  mistaken,  and 
so  as  to  distinguish  it  from  all  others;  and  provided 
the  bill  is  drawn  within  a  reasonable  time  after  such 
promise.  (2  Gall.  233  ;  2  Wheat.  66;   1  Story,  22.) 

Any  act  of  the  drawee,  which  demonstrates  an  in- 
tention to  comply  with  the  request  of  the  drawer,  will 
amount  to  an  acceptance.  An  expression  "  leave  the 
bill,  and  I  will  accept  it,"  or  a  direction  to  a  third 
person  to  pay  the  bill  "  written"  thereon,  is  a  sufficient 
acceptance.  A  verbal  promise  that,  "  if  the  bill  come 
back,  he  would  pay  it,"  was  held  a  good  acceptance. 

An  implied  acceptance  may  be  inferred  from  the 
drawee  keeping  the  bill  a  great  length  of  time,  or  any 
other  act  which  induces  the  holder  not  to  protest  it,  or 
to  consider  it  as  accepted. 

What  notice  oj' the  non-acceptance  of  a  hill  must  he 
given  the  drawer  or  indorsers  to  render  them  liable. — 
Where  the  drawee  refuses  to  accept  a  bill,  the  holder 
should  give  immediate  notice  of  the  fact  to  the  drawer 
and  indorsers,  or  such  of  them  as  he  intends  to  look  to. 


LIABILITY   OP   ACCEPTOR.  13 

for  payment.  The  rules  as  to  the  form,  time  of  notice, 
&c.,  apply  as  in  the  case  of  notice  for  non-payment. 
(See  page  19.) 

In  what  cases  it  is  necessary  to  have  the  bill  protest- 
ed, will  be  stated  hereafter.  (See  page  22.) 

Liability  of  acceptor.' — An  absolute  acceptance  is 
an  engagement  by  the  acceptor  to  pay  according  to 
the  tenor  of  the  bill  ;  and  a  conditional  or  partial  one, 
to  pay  according  to  the  tenor  of  the  acceptance. 

The  drawee,  by  accepting  a  bill,  admits  the  genu- 
ineness of  the  drawer's  signature.  If,  therefore,  the 
drawee  accepts  a  forged  bill,  or  a  bill  with  a  larger 
amount  than  that  fixed  by  the  real  drawer,  he  will  nev- 
ertheless be  liable  to  pay  the  bona  fide*  holder,  and  will 
have  no  claim  upon  the  supposed  drawer.  Every 
drawee  ought  therefore  to  be  careful,  before  accepting, 
to  ascertain  that  the  signature  of  the  drawer  is  genuine, 
and  that  there  has  not  been  substituted  for  payment  a 
larger  sum  than  that  really  required  by  the  drawer. 

But  the  drawee,  by  accepting,  does  not  admit  the 
genuineness  of  the  signatures  of  the  endorsers  ;  and  the 
holder,  in  order  to  recover  of  the  acceptor,  must  be 
able  to  prove  that  the  signatures  of  the  endorsers, 
through  whom  he  claims,  are  genuine. 

The  acceptor  of  a  bill  is  the  principal  debtor,  and 
the  drawer  and  endorsers  are  to  be  regarded  as  sure- 
ties;  and  nothing  will  discharge  the  acceptor,  but  pay- 
ment or  release.  He  is  bound,  though  he  accepted 
without  consideration,  and  for  the  sole  accommodation 
of  the  drawer.  And  if  he  agrees  to  accept  a  bill,  al- 
though he  has  no  funds  in  his  hands,  and  the  bill  is 
drawn  on  the  faith  thereof,  and  he  afterwards  refuses 
to  accept  it,  or  to  pay  it,  he  will  be  liable  to  the  draw- 
er for  the  loss  and  expense,  which  his  refusal  may 
have  occasioned  him. 

An  acceptor  of  a  bill  of  exchange  is  not  liable  to 
the  payee  or  indorsee  for  damages  caused  by  non-pay- 
ment, but  only  for  the  amount  of  the  bill,  with  interest 
and  cost  of  protest.  (10  Met.  375.) 

•  Bona  fide.    Anything  done  with  good  faith,  without  fraud  or  deceit. 
L.  T.  2 


14     ACCEPTANCE  FOR  HONOR. — INDORSEMENT. 
ACCEPTANCE  FOR  HONOR. 

Acceptor  for  honor,  or  supra  protest. — A  third  per- 
son, after  protest  for  a  non-acceptance  by  the  drawee, 
may  intervene,  and  become  a  party  to  the  bill,  by  ac- 
cepting and  paying  the,bill,  for  the  honor  of  the  drawer, 
or  of  a  particular  indorser.  His  acceptance  is  termed 
an  acceptance  supra  protest,  and  he  subjects  himself 
to  the  same  obligations  as  if  the  bill  had  been  directed 
to  him. 

The  mode  of  acceptance  is,  for  the  acceptor  person- 
ally to  appear  before  the  notary  with  witnesses,  and 
make  declaration  that  he  accepts  said  bill  in  honor  of 
the  drawer  or  indorser,  and  that  he  will  ratify  the  same 
at  the  appointed  time ;  and  he  then  subscribes  the 
same  thus,  "  Accepted  supra  protest,  in  honor  of  A.  B." 

In  order  to  make  the  liability  of  the  acceptor  supra 
protest  complete  and  absolute,  the  bill  must  be  dvly 
presented  for  payment,  at  the  time  it  falls  due,  to  the 
original  drawee,  notwithstanding;  because,  between 
the  time  of  such  refusal  and  the  time  when  the  bill 
would  fall  due,  effects  may  have  reached  the  drawee, 
out  of  which  he  might,  if  the  bill  were  presented  again, 
pay  the  bill ;  and  if  the  bill  is  not  paid,  it  must  be  du- 
ly protested  for  non-payment,  and  due  notice  given  to 
the  acceptor  supra  protest. 

The  acceptor  supra  protest  has  his  remedy  against 
the  person  for  whose  honor  he  accepted,  and  against 
all  the  parties  who  stand  prior  to  that  person.  If  he 
takes  up  the  bill  for  the  honor  of  the  indorser,  he 
stands  in  the  same  position  as  a  bona  fide  indorsee,  and 
has  the  same  remedies  to  which  an  indorsee  would  be 
entitled  to  against  all  prior  parties. 

The  holder  of  a  bill  is  not  obliged  to  take  an  accept- 
ance supra  protest. 

INDORSEMENT. 

Of  the  indorsement  of  a  hill  or  note. — The  payee,  or 
person  legally  interested  in  the  instrument,  or  his  agent, 
must  himself  make  the  first  indorsement  or  transfer. 
A  transfer  by  indorsement  vests  in  the  indorsee  a  right 
of  action  against  all  the  parties  whose  names  are  on  the 
bill  or  note,  in  case  of  default  of  acceptance  or  payment, 


INDOHSEMENT. — PRRSENTMENT   FOR  PAYMENT.       15 

and  against  an  innocent  indorsee  for  value ;  no  prior 
party  can  set  up  the  defence  of  fraud,  duress,  or  want 
of  consideration. 

The  indorsement  is  an  implied  contract  that  the  in- 
dorser  has  a  good  title,  and  that  the  antecedent  names 
are  genuine;  that  the  bill  or  note  shall  be  duly  honor- 
ed or  paid,  and  if  not,  that  he  will,  on  due  protest  and 
notice,  take  it  up. 

If  a  blank  note  or  check  be  indorsed,  it  will  bind 
the  indorser  to  any  sum,  or  time  of  payment,  which  the 
person  to  whom  he  indorses  the  paper  may  choose  to 
insert  in  it. 

A  bill  cannot  be  indorsed  for  part  of  its  contents 
after  its  acceptance;  but  if  paid  in  part,  may  be  in- 
dorsed as  to  its  residue. 

An  indorsement  is  valid,  though  written  with  a  lead 
pencil. 

An  indorser  may  so  qualify  his  indorsement  as  to 
free  himself  from  all  liability;  as  if  he  should  add, 
*'  at  his  own  risk,"  or  "  without  recourse  ;"  in  which 
case,  although  the  prior  and  subsequent  indorsers 
would  be  liable,  yet  he  would  be  free  from  all  liability, 
by  reason  of  his  special  indorsement. 

Where  there  are  three  consecutive  indorsers  to  a 
note,  the  release  by  the  plaintiff  of  the  first  indorser  is 
a  bar  to  an  action  against  the  others.  (21  Wend.  108.) 

PRESENTMENT    FOR    PAYMENT. 

Of  presentment  for  payment — ichat  necessary  to  hind 
draioer  and  indorsers. — A  bill  or  note  must  be  present- 
ed for  payment  by  the  holder  or  his  agent  on  the  day 
it  is  due,  if  he  wishes  to  make  the  indorsers  liable. 
The  presentment  must  be  made  to  the  maker  or  accept- 
or, at  the  place  appointed  for  payment,  or  at  his  house 
or  residence,  or  regular  known  place  of  business,  or 
to  him  personally,  if  no  particular  place  be  appointed. 

The  insolvency  or  death  of  the  maker  or  acceptor, 
however  notorious,  will  not  excuse  the  neglect  to  make 
due  presentment.  If  he  be  dead,  presentment  must 
be  made  to  his  personal  representative,  whether  execu- 
tor or  administrator,  and  if  there  be  neither,  then  at 
the  house  of  the  deceased. 


1§  PRESENTMENT    FOR    PAYMENT. 

In  the  case  of  notes  or  bills  payable  on  demand,  a 
presentment  for  payment  should  be  made  within  a 
reasonable  time.  In  Massachusetts,  a  presentment  of 
a  note  payable  on  demand  at  the  expiration  of  sixty 
days  from  the  date  thereof,  without  grace,  is  deemed  to 
have  been  made  within  a  reasonable  time.  (Laws  1839, 
c.  121.) 

Where  a  note  is  made  payable  "  at  either  of  the 
banks,"  in  a  large  city,  where  there  is  a  large  number 
of  banks,  the  holder  may  present  it  at  any  one  of  the 
banks  which  he  may  select,  and  it  will  be  a  sufficient 
presentment.  Tt  would  seem,  however,  in  such  case, 
that  the  holder  ought  to  give  notice  to  the  promisee, 
where  his  note  is.  (13  Pick.  469.) 

Where  a  note  is  made  payable  at  a  particular  place, 
as  at  a  certain  bank,  it  is  sufficient  for  the  holder  to 
present  it  at  the  specified  place,  and  if  dishonored 
there,  the  indorsers  will  be  liable  upon  due  notice. 

Where  no  particular  place  of  payment  is  specified 
on  the  note,  the  presentment  ought  to  be  made  to  the 
maker  personally,  or  at  his  dwelling-house,  or  place  of 
business. 

A  presentment,  in  such  case,  at  the  maker's  place  of 
business  is  sufficient,  if  made  in  business  hours,  even 
if  it  be  shut,  and  no  person  left  there  to  answer  in- 
quiries. -  So  a  presentment  at  the  residence  of  the 
drawee  or  maker  is  sufficient,  even  if  he  be  out  of  town 
at  the  time. 

But  if  the  maker  removes  his  residence,  or  place  of 
business,  between  the  time  the  note  was  made  and 
when  it  becomes  due,  the  demand  must  be  made  at 
such  new  place  of  business  or  residence,  if  within  the 
same  State  with  the  old,  provided  it  be  known,  or  can 
by  due  diligence  be  found. 

Where,  however,  the  maker  abandons  his  business 
and  residence,  and  removes  into  another  State,  before 
the  maturity  of  the  note,  the  holder  is  not  bound,  in 
order  to  charge  the  indorser,  to  demand  payment  of 
the  maker  in  the  State  to  which  he  has  removed ;  but 
he  is  bound  to  demand  payment  at  the  maker's  last 
residence  or  place  of  business,  within  the  State  where 
he  made  the  note,  if  he  can  find  it  by  the  use  of  due 
diligence.  (6  Met.,  290.) 


WHAT   WILL    EXCUSE    NON-PRESENTMENT.  17 

Where  a  note  is  dated,  and  delivered  in  one  State, 
and  the  maker  actually  resides  in  another,  it  would 
seem  to  be  sufficient  for  the  holder  to  demand  payment 
at  the  place  where  it  is  dated,  if  he  cannot  find  the 
maker,  upon  reasonable  inquiry,  within  the  State,  and 
he  has  no  known  place  of  business  there. 

If  the  holder  of  a  note  m^akes  diligent,  though  un- 
successful inquiries,  to  ascertain  the  maker's  residence, 
at  the  time  the  note  falls  due,  it  is  sufficient,  and  will 
be  as  effectual  as  an  actual  presentment. 

The  absence  of  the  maker  of  a  note  on  a  voyage  at 
sea,  if  his  family  still  reside  in  the  State,  will  not  ex- 
cuse a  demand  of  payment,  because  it  may  happen  that 
he  has  left  with  his  family  means  to  pay  the  note. 

It  is  sufficient  to  constitute  a  demand  and  refusal  to 
pay  a  note,  that  the  maker,  on  the  day  it  becomes  due, 
calls  on  the  holder  at  his  store,  where  the  note  is,  and 
informs  him  that  he  cannot  and  shall  not  pay  it,  and  de- 
sires him  to  give  notice  to  the  indorser,  though  the 
note  is  not  produced. 

But  where  a  note,  made  payable  at  a  bank,  is  not 
at  the  bank  when  it  falls  due,  and  no  demand  is  then 
made  on  the  maker,  the  indorsee  cannot  charge  the 
indorser,  by  giving  him  seasonable  notice  of  non-pay- 
ment, although  the  maker  had  previously  told  the  in- 
dorsee that  it  would  be  useless  to  send  the  note  to  the 
bank,  because  he  could  not  pay  it. 

The  holder  must  have  the  note  in  his  possession, 
ready  to  be  delivered  up,  when  the  presentment  for 
payment  is  made. 

What  will  excuse  the  non-presentment  of  a  bill  or 
note. — We  have  seen  that  where  the  holder  uses  due 
diligence  to  ascertain  the  residence  of  drawee  or  mak- 
er, and  is  unsuccessful,  it  is  as  effectual  as  an  actual 
presentment. 

So  where  a  note  is  made  for  the  accommodation  of 
a  particular  indorser,  the  non-presentment  of  the  note 
to  the  maker  for  payment,  will  not  discharge  such  in- 
dorser from  liability,  as  he  is  in  fact  the  real  parly  ow- 
ing on  the  note ;  but  as  regards  all  other  indorsers  to 
the  note,  due  presentment  must  be  made. 

L.  T.  2* 


18  WHAT   WILL    EXCUSE    NON-P£ESENTMENT. 

So  an  indorser  may  waive  his  right  to  have  the  note 
presented  at  its  maturity,  and  in  case  of  non-payment, 
to  have  proper  notice  of  the  fact.  The  usual  words, 
where  an  indorser  waives  his  right  in  this  respect,  are 
"  waiving  demand  and  notice."  Bui  an  agreement  to 
waive  notice,  will  not  excuse  the  party  from  making 
a  due  presentment  for  payment ;  and  care  should  always 
be  taken  in  such  cases,  to  use  language  that  clearly 
imports  a  waiver  of  these  rights,  as  courts  construe 
such  language  strictly.  Of  course,  the  fact  that  one 
indorser  has  waived  his  right  to  demand  and  notice, 
does  not  affect  the  rights  of  the  other  indorsers. 

It  is  not  necessary  that  the  waiver  should  be  in  writ- 
ing, and  if  it  clearly  appears  from  all  the  circumstances 
that  the  indorser  intended  to  waive  notice,  or  demand, 
or  both,  he  will  not  be  entitled  to  them.  Thus,  where 
the  indorsee,  who  lived  in  New  York,  observed  to  the 
indorser,  when  he  received  the  note,  that  he  had  no 
confidence  in  the  other  parties  to  the  note,  and  did  not 
know  them,  and  should  look  wholly  to  him,  and  the 
indorser  replied,  that  he  should  be  in  New  York  when 
the  note  became  due,  and  would  take  it  up,  if  it  were 
not  paid  by  any  other  party  to  it ;  it  was  held  that  this 
was  a  waiver  of  a  right  to  notice  of  the  dishonor  of  the 
note. 

When  the  maker  of  a  promissory  note  has  assigned 
all  his  property  to  the  indorser  for  his  security  against 
the  indorsements,  the  indorser  is  considered  as  waiving 
a  demand  on  the  maker,  as  well  as  notice  to  himself  by 
an  indorsee.  (5  Mass.  170.) 

If  due  demand  on  the  maker  be  not  made,  or  due 
notice  of  non-acceptance  or  non-payment  be  not  given, 
yet  a  subsequent  promise  to  pay,  by  the  party  entitled 
to  notice,  be  he  either  drawer  or  indorser,  will  amount 
to  a  waiver  of  the  demand  or  notice ;  provided  the 
promise  was  made  unequivocally,  and  with  full  knowl- 
edge of  the  fact  of  a  want  of  due  diligence  on  the  part 
of  the  holder. 

When  a  draft  has  been  protested  for  non-acceptance, 
the  holder  is  not  bound  to  present  it  at  maturity  for 
payment  to  preserve  his  recourse.  (8  N.  H.  66.) 


DAYS   OF  GBACE. — NOTICE  TO  INDOESERS.  19 

DAYS    OF    GRACE. 

Days  of  grace,  or  time  when  a  demand  should  he 
made. — In  Massachusetts,  three  days  of  grace  are  al- 
lowed on  all  bills  of  exchange,  payable  at  sight  or  at  a 
future  day  certain,  and  on  all  promissory  negotiable 
notes,  orders  and  drafts,  payable  at  a  future  day  cer- 
tain. (R.  S.  c.  33,  ^5.)  This  is  the  rule  in  nearly  all 
the  States. 

No  days  of  grace  are  allowed  on  bills,  notes  or  drafts 
payable  on  demand  ;  and  where  no  time  of  payment  is 
expressed  on  the  face  of  the  note,  it  is  treated  as  a  note 
payable  on  demand. 

Where  days  of  grace  are  by  law  allowed  on  bills  or 
notes,  they  are  not  considered  due  until  the  expiration 
of  the  days  of  grace.  It  would  therefore  be  equally 
unseasonable,  to  demand  payment  before  the  expira- 
tion of  the  third  day  of  grace,  as  after  the  day.  The 
demand  must  be  made  on  the  third  day  of  grace,  unless 
it  happens  to  fall  on  Sunday,  or  some  public  day,  when 
the  demand  should  be  made  on  the  second  day  of  grace, 
otherwise  the  drawer  of  the  bill,  and  the  indorser  of 
the  note,  are  discharged. 

"The  demand  must  be  made  at  seasonable  hours;  as, 
within  business  hours,  if  made  at  the  maker's  place  of 
business ;  or  within  the  usual  hours  for  a  family  to  be 
up,  if  made  at  his  dwelling-house ;  otherwise  the  de- 
mand is  not  good.  So  a  note  payable  at  a  bank,  must 
be  paid  within  bank  hours. 

NOTICE    TO    INDORSERS. 

What  notice  that  a  hill  or  note  is  dishonored,  must 
he  given  the  indorsers  or  drawer,  to  render  them  liable. 
— It  is  not  sufficient  for  the  holder  of  a  bill  or  note,  to 
show  that  he  has  made  a  demand,  or  used  due  diligence 
to  obtain  the  money  of  the  drawee  or  maker ;  but  he 
must  give  seasonable  notice  to  the  drawer  or  indorsers, 
or  their  authorized  agent,  that  the  note  or  bill  has  been 
dishonored,  otherwise  they  will  not  be  liable. 

The  holder  of  a  bill  or  note,  therefore,  should,  im- 
mediately upon  its  dishonor,  give  due  notice  thereof  to 
all   the  parties  he  intends   to   look   to   for  payment. 


20  NOTICE   TO   INDORSERS. 

Any  indorser  who  has  received  seasonable  notice  is 
liable,  although  no  notice  be  given  to  the  drawer  or 
prior  indorsers,  as  the  holder  need  give  notice  to  no 
one,  excepting  such  as  he  wishes  to  hold  liable.  The 
indorser,  therefore,  on  receiving  notice  of  the  dishonor 
of  a  bill  or  note,  should  give  immediate  notice  to  the 
drawer  and  indorsers  to  whom  he  means  to  resort.  A 
notice,  however,  from  the  holder  to  any  other  party, 
will  inure  to  the  benefit  of  every  other  party,  coming 
between  the  person  giving  the  notice,  and  the  person 
to  whom  it  is  given. 

The  notice  must  be  given  by  the  holder  or  his  au- 
thorized agent;  and  notice  by  a  mere  stranger  will 
not  be  sufficient.  If  the  holder  is  a  bankrupt  or  in- 
solvent, then  notice  by  his  assignee  will  be  sufficient. 

Where  the  parties  to  be  notified  reside  in  the  same 
town  or  city  with  the  holder,  they  must  have  personal 
notice  of  the  dishonor  of  the  bill  or  note,  either  verbal- 
ly or  in  writing ;  or  a  written  notice  must  be  left  at 
their  dwelling-house  or  place  of  business.  Either 
mode  is  sufficient;  but  one  or  the  other  must  be  ob- 
served, unless  it  is  prevented  by  the  act  of  the  party 
entitled  to  the  notice. 

Where  the  parties  do  not  live  in  the  same  town  with 
the  holder,  the  notice  may  be  sent  by  mail  or  by  a 
private  hand.  It  is  usual  to  send  by  mail,  and  that 
perhaps  is  the  better  way.  Where  the  holder  lives  in 
the  same  town  with  a  party  to  be  notified,  it  will  not  be 
sufficient  to  send  the  notice  to  the  Post  Office,  unless 
the  holder  can  prove  that  the  party  actually  got  the 
notice.  It  has  been  thought  that  in  a  large  city, 
where  there  is  a  penny  post  established,  a  notice  sent 
through  the  Post  Office  would   be  sufficient. 

If  the  holder  uses  the  ordinary  mode  of  conveyance, 
he  is  not  required  to  see  that  the  notice  is  brought 
home  to  the  party ;  and  puiting  the  notice  by  letter 
into  the  Post  Office  is  sufficient,  though  the  letter 
should  happen  to  miscarry. 

The  notice  must  be  given  or  sent  within  a  reasona- 
ble time.  It  is  considered  a  rea.sonable  time  to  give 
notice  the  next  day  after  the  note  is  dishonored.  If 
notice  is  to  be  sent  by  mail,  it  should  be  put  into  the 


::^..■'.>.  ■■■■^v.      NOTICE    TO    INDORSERB.  21 

Post  Office  time  enough  for  the  first  mail  on  the  day 
next  after  that  on  which  it  is  dishonored.  Thus,  if  the 
third  day  of  grace  be  Tuesday,  and  the  note  or  bill  is 
dishonored,  and  the  drawer  or  indorser  live  out  of 
town,  the  notice  may  be  sent  on  Tuesday,  but  it  must 
be  put  into  the  Post  Office  on  Wednesday.  The  same 
rule,  as  to  the  time  of  notice,  applies  where  the  in- 
dorser and  holder  live  in  the  same  town. 

Each  party  successively,  into  whose  hands  a  dis- 
honored note  may  pass,  is  allowed,  it  would  seem,  one 
entire  day,  for  the  purpose  of  giving  notice.  If  the  de- 
mand be  made  on  Saturday,  the  notice  may  be  given 
on  Monday. 

In  what  cases  a  want  of  notice  is  excused. — If  the 
drawee  refuses  to  accept,  because  he  has  no  effects  of 
the  drawer  in  hand,  and  the  drawer  had  no  right  to 
draw,  and  no  right  to  expect  his  bill  would  be  paid, 
protest  and  notice  to  the  drawer  are  not  necessary. 
This  exception  applies  only  to  the  drawer,  and  not  to 
the  indorser  of  a  bill  drawn  without  funds ;  and  it  is 
advisable  even  to  give  due  notice  to  the  drawer,  to 
avoid  any  mistake;  for  if  the  drawer  should  suffer  any 
detriment  by  reason  of  not  having  notice,  he  would 
probably  be  discharged. 

If  the  holder  or  his  agent  goes  to  the  place  of  busi- 
ness or  dwelling-house  of  the  person  entitled  to  notice, 
within  seasonable  hours,  and  finds  the  place  shut,  and 
no  person  there  to  receive  notice,  he  is  not  obliged  to 
go  a  second  time,  or  even  to  leave  a  notice.  If,  howev- 
er, the  party  entitled  to  notice,  has  changed  his  resi- 
dence, notice  should  be  sent  to  his  new  residence. 

The  holder  is  also  excused  for  not  giving  regular 
notice  to  an  indorser,  of  whose  place  of  residence  he 
is  ignorant,  provided  he  uses  reasonable  diligence  to 
discover  where  the  indorser  may  be  found.  And  where 
he  has  used  reasonable  diligence  to  discover  the  resi- 
dence of  the  indorser,  notice  given  as  soon  as  it  is  dis- 
covered is  due  notice. 

Notice  may  be  waived  by  an  express  agreement  be- 
tween the  parties,  in  the  same  manner  as  a  demand  for 
payment,  which  see. 


^    FORM    OF   NOTICE. PROTEST,    WHEN    NECESSARY. 


NOTICE. 

Form  of  notice. — There  is  no  precise  form  of  words 
necessary  to  be  used  in  giving  notice  of  the  dishonor 
of  a  bill  or  note,  but  the  language  used  must  be  such 
as  to  convey  notice  to  the  party  what  the  bill  or  note  is, 
that  payment  has  been  refused  by  the  maker  or  accep- 
tor, and  that  the  holder  looks  to  him  for  the  amount. 
The  notice  may  be  given  verbally  or  in  writing,  and 
must  give  information  of  the  fact,  that  the  note  is  dis- 
honored by  the  fault  of  the  maker. 

Thus,  a  notice  given  to  the  indorser  of  a  note,  mere- 
ly stating  that  the  person  giving  notice  holds  the  note, 
and  that  it  is  due  and  unpaid,  and  demanding  payment, 
is  not  sufficient  to  charge  the  indorser ;  for  it  does  not 
inform  him  that  demand  has  been  made  of  the  promisor, 
and  payment  refused,  or  in  any  other  way,  by  express 
declaration  or  reasonable  implication,  give  him  infor- 
mation that  the  note  was  in  fact  dishonored. 

PROTEST,    WHEN    NECESSARY. 

Foreign  and  Inland  Bills. — If  the  bill  be  dishonored, 
the  holder  should  have  it  immediately  protested,  and  the 
protest  should  be  made  by  a  notary-public  ,  but  if  none 
can  be  procured,  it  is  said  that  it  may  be  made  by  an  in- 
habitant, in  presence  of  two  witnesses.*  (Bayley,  259.) 

By  the  general  law-merchant,  no  protest  is  required 

»  FOKM   OF    PROTEST. 

—  ss.  Commonwealth  of  Massachusetts. 

On  this day  of ,  in  the  year  of  our  Lord  one   thousand   eight 

hundred  and ,  I,  B.  H.  C,  JVotanj  Puilic,  by  leiral  authority  ailmitled  and 

sworn,*  and  dwelling  in  the  City  of  Boston,  at  the  request  of  VV.  X.,  of 
,  went  with  the  original  Note  [or  Bill  of  Exchange]  of  which  Ihe  fore- 
going is  a  true  Copy,  [here  insert  the  Note  or  Bill.] 

Wherefore,  I,  the  said  JVotary,  at  the  request  aforesaid,  have  protested 
and  by  these  presents  do  solemnly  protest  against  the  Drawer  of  said  Note, 
[or  Bill]  Eiidorser[sl,  and  all  others  concerned  therein,  for  Exchange,  Re- 
Exchange,  and  all  Costs,  Charges,  Damages,  and  Interest,  suffered  and 
sustained  or  to  be  suffered  and  sustained,  by  reason  or  in  consequence  of 
the.  non-acceptance,  or,  [non-payment]  of  said  Note  [or  Bill]  of  said  C.  D. 

Thus  done  and  protested  in  Boston,  aforesaid,  and  my  jVotarial  Seal 
affixed,  the  day  and  year  last  written. 

B.  H.  C,  Notary  Public. 
Charges.  Dolls.        Cls. 

Noting, 
Protest, 
Record, 
Notice, 
•If  a  person,  not  a  notary,  protest' the  bill,  the  words  in  italics  can  bo 
left  out.    Notarial  Fees,  see  Part  f. 


CHECKS,  OR  DRAFTS.  23 

to  be  made  upon  the  dishonor  of  any  promissory  note  ; 
but  it  is  exclusively  confined  to  foreign  bills  of  exchange. 
Neither  is  it  a  necessary  part  of  the  official  duty  of  a 
notary  to  give  notice  to  an  indorser  of  the  dishonor  of 
a  promissory  note.  But  a  state  law  or  general  usage 
may  overrule  the  general  law  merchant  in  these  res- 
pects. (2  U.  S.  Rep.  66.) 

Where  a  protest  is  necessary,  it  is  not  indispensable 
that  it  should  be  made  by  a  person  who  is  a  notary,  (ib.) 

The  relation  which  exists  between  a  notary  and  the 
holder  of  a  note,  with  regard  to  the  protest  of  the  note, 
and  notice  to  indorsers,  is  that  of  principal  and  agent, 
and  no  more  strict  performance  of  duty  is  required  of 
the  notary  than  is  indicated  by  the  uniform  practice  of 
the  place  where  the  note  is  protested.  (6W.  &  S.  264.) 

A  bill  drawn  in  one  state  and  payable  in  another,  is 
a  foreign  bill,  so  as  to  make  the  protest  admissible  in 
evidence,  although  all  the  parties  were  residents  in  the 
state  where  the  bill  was  drawn.   (10  Mass.  99.) 

A  drawer  or  indorser  of  a  foreign  bill  of  exchange  is 
liable  to  the  expenses  of  the  protest,  and  to  a  rate  of 
damage  established  by  law  or  usage. 

With  respect  to  an  Inland  Bill,  or  Note,  for  which 
the  law  does  not  require  a  protest,  it  is  sufficient,  in 
all  cases,  to  give  notice  of  non-payment,  to  entitle  the 
holder  to  claim  interest  of  the  drawer. 

Whether  an  accommodation  note  can  be  protested 
for  non-payment,  so  as  to  authorize  a  charge  against 
the  maker  and  his  sureties  for  notarial  fees?  At  any 
rate  a  protest  is  unnecessary.   (1  Alabama,  425.) 

CHECKS,    OR    DRAFTS. 

Checks  or  Drafts  are  orders  addressed  to  the  cash- 
ier of  a  bank  or  a  banker,  directing  him  to  pay  the  sum 
specified  in  the  check  to  the  person  named  in  it,  or 
bearer  on  demand. 

In  point  of  form,  checks  nearly  resemble  bills  of 
exchange,  except  that  they  are  uniformly  pay  able  to 
bearer,  and  should  be  drawn  upon  a  bank  or  regular 
banker;  though  this  latter  point  is  not  essential.  They 
are  assignable  by  delivery  only  ;  and  are  payable  in- 
stantly on  presentment,  without  any  days  of  grace  be- 
ing allowed. 


9%  DAMAGES    ON    PROTESTED    BILLS. 

Checks  are  usually  taken  conditionally  as  cash  ;  for 
unless  an  express  stipulation  be  made  to  the  contrary, 
if  they  be  presented  in  due  time  and  not  paid,  they  are 
not  a  payment. 

It  is  difficult  to  define  what  is  the  due  or  reasonable 
time  within  which  checks,  notes,  or  bills  should  be 
presented.  A  man  is  not  obliged  to  neglect  all  other 
business,  that  he  may  immediately  present  them  :  nev- 
ertheless it  is  the  safest  plan  to  present  them  without 
any  avoidable  delay  ;  and  if  received  in  the  place  where 
payable,  they  had  better  be  presented  that  day,  or  next 
at  furthest. 

A  creditor  is  not  bound  to  take  a  check  on  a  bank, 
transmitted  to  him  as  payment  of  his  debt,  and  he  may 
commence  an  action  for  the  debt  while  the  check  is 
yet  in  his  hands. 

A  check  on  a  bank  payable  at  a  future  day,  is  not  a 
bill  of  exchange,  and  requires  no  notice  of  dishonor. 


DAMAGES  ON  PEOTESTED  BILLS. 

On  bills  payable  without  the  United  States,  not  be- 
yond Cape  of  Good  Hope,  S^c. — When  a  bill  of  ex- 
change, drawn  or  indorsed  in  Massachusetts,  and  pay- 
able without  the  limits  of  the  United  States,  (excepting 
places  in  Africa  beyond  tlie  Cape  of  Good  Hope,  in  Asia 
and  the  islands  thereof,)  is  duly  protested,  the  party 
liable  for  the  contents,  must,  on  due  notice  and  demand, 
pay  the  same,  at  the  current  rate  of  exchange  at  the 
time  of  the  demand,  and  damages  at  the  rate  of  five  per 
cent  upon  the  contents,  with  interest,  to  be  computed 
from  the  date  of  the  protest,  in  full  of  all  damages, 
charges  and  expenses.  (R.  S.  c.  33.) 

On  bills  payable  beyond  Cape  of  Good  Hope,  S^c. — 
Except  in  the  cases  before  mentioned,  the  party  liable 
for  the  contents  shall,  on  due  notice  and  demand,  pay 
the  same  at  its  par  value  thereof,  with  twenty  per  cent 
thereon,  in  full  of  all  damages,  interest  and  charges,  {ib.) 

On  bills  payable  out  of  this  state,  but  within  United 
States.  —  Damages  on  inland  bills  which  are  protested, 
are  as  follows  : — On  bills  payable  in  the  states  of  Maine, 
New  Hampshire,  Vermont,  Rhode  Island,  Connecticut, 
and  New  York,  two  per  cent;  in  New  Jersey,  Pennsyl- 


VSURY. CONTRACTS   AND   AGREEMENTS.  25 

vania,  Maryland,  Delaware,  three  per  cent ;  in  Virginia, 
and  the  District  of  Columbia,  North  Carolina,  South 
Carolina,  and  Georgia,  four  per  cent.;  in  any  other  of 
the  United  States,  or  the  territories  thereof,  five  per 
centum,  with  interest  and  costs.  (Laws  1837.) 

On  bills  payable  within  this  state,  —  The  rate  of 
damages,  upon  bills  of  exchange,  or  orders  for  the  pay- 
ment of  money,  drawn  or  indorsed  in  Massachusetts, 
for  any  sum  not  less  than  one  hundred  dollars,  and  pay- 
able in  the  state,  at  any  place  not  less  than  seventy-five 
miles  distant  from  the  place  where  the  same  is  drawn  or 
indorsed,  when  such  bills  or  orders  shall  not  be  duly 
accepted  or  paid,  shall  be  one  per  cent  in  addition  to  the 
contents  thereof,  and  interest  on  said  contents.  ( R,  S.  33. ) 

TTSTTKY. 

If,  in  any  action  brought  on  any  contract,  it  shall 
appear  that  a  greater  rate  of  interest  has  been  taken, 
directly  or  indirectly,  than  is  allowed  by  law,  the  de- 
fendant shall  recover  his  full  costs,  and  the  plaintiff 
forfeit  three-fold  the  amount  of  interest. 

The  party  paying  more  than  legal  interest,  may  re- 
cover back  three-fold  the  amount  of  interest  paid. 
Action  must  be  brought  within  two  years. 

In  an  action  where  more  than  legal  interest  has  been 
taken,  the  debtor  and  creditor  may  both  be  admitted  as 
witnesses. 

A  sale  of  a  promissory  note  at  a  greater  discount 
than  legal  interest,  does  not  make  the  transaction  usu- 
rious. (20  N.  H.  98.) 

Where  something  besides  interest,  as  such,  is  allowed 
on  a  loan  and  forbearance  of  money,  it  is  a  question  of 
fact  for  the  jury,  whether  the  contract  is  fairly  and 
honestly  made,  or  whether  it  is  a  cloak  for  usury.  (3 
Met.  211.) 


CONTEACTS    AND    AGEEEMENTS. 

WRITTEN     CONTRACTS. 

♦Any  person  capable  of  binding  himself  by  contract, 
is  capable  of  entering  into  an  agreement. 

A  person  Non-comvos  cannot  enter  into  an  agreement. 

L.  T.  3 


S6  WKITTEN    AGREEMENTS. 

Contracts  made  during  a  state  of  drunkenness  are  void- 
able, upon  the  ground,  that  it  is  a  state  of  temporary 
idiocy  or  lunacy.  By  the  common  law  Minors  cannot 
contract,  except  for  necessaries,  such  as  food,  clothing, 
medicine  and  education;  and  in  judging  of  what  are 
necessaries,  the  comparative  age  and  position  of  the 
party  will  be  considered.  If  one  lend  money  to  a 
minor,  it  would  seem  that  the  borrower  would  not  be 
bound,  though  he  lay  it  out  on  necessaries,  as  the  ne- 
cessity is  judged  of  from  the  nature  of  the  contract,  not 
from  what  the  minor  may  do  in  consequence  of  it.  A 
Wife.,  during  intermarriage,  is  incapable,  without  her 
husband's  consent,  of  acting  on  an  agreement;  except 
with  respect  to  such  real  and  personal  property  as  is 
secured  to  her  by  deeds  of  trust.  No  sum  exceeding 
one  dollar  can  be  recovered  of  a  Seaman  in  the  mer- 
chant service,  for  a  debt  contracted  during  the  time  he 
shall  actually  belong  to  any  ship  or  vessel,  until  the 
voyage  be  ended. 

In  Massachusetts,  no  action  can  be  brought  in  any 
of  the  following  cases  :  — 

First,  to  charge  an  executor  or  administrator,  upon 
any  special  promise  to  answer  damages  out  of  his  own 
estate  :  or 

Secondly,  to  charge  any  person,  upon  any  special 
promise  to  answer  for  the  debt,  default,  or  misdoings 
of  another :  or 

Thirdly,  to  charge  any  person,  upon  an  agreement 
made  upon  consideration  of  marriage  :  or 

Fourthly,  upon  any  contract  for  the  sale  of  lands, 
tenements,  or  hereditaments,  or  of  any  interest  in  or 
concerning  them  :  or 

Fifthly,  upon  any  agreement  that  is  not  to  be  per- 
formed within  one  year  from  the  making  thereof;  un- 
less the  promise,  contract  or  agreement,  upon  which 
such  action  shall  be  brought,  or  some  memorandum  or 
note  thereof,  shalf  be  in  writing,  and  signed  by  the 
party  to  be  charged  therewith,  or  by  some  person  by 
him  lawfully  authorized.  The  consideration  of  any 
such  promise  need  not  be  in  writing.  (R.  S.  c.  74.) 
j^Wo  person  is  liable  by  reason  of  any  representation, 


WRITTEN   AGREEMENTS.  27 

recommendation,  or  assurance,  made  concerning  the 
character,  conduct,  credit,  ability,  trade  or  dealings  of 
any  other  person,  unless  such  representation  or  assur- 
ance be  made  in  writing,  and  signed  by  the  party  to  be 
charged  thereby,  (ib.) 

No  contract  for  the  sale  of  any  goods,*  wares  or 
merchandize,  for  the  price  of  fifty  dollars  or  more,  shall 
be  good  or  valid,  unless  the  purchaser  shall  accept  and 
receive  part  of  the  goods  so  sold,  or  shall  give  some- 
thing in  earnest  to  bind  the  bargain,  or  in  part  pay- 
ment; or  unless  some  note  or  memorandum  in  writing 
of  the  bargain  be  made  by  the  party  to  be  charged 
thereby,  (ib.) 

An  assignee  in  insolvency  is  not  to  be 'personally 
liable  on  any  special  promise,  contract  or  agreement, 
unless  the  same  shall  be  in  writing,  and  signed  by  him. 

A  new  promise,  by  a  debtor,  to  pay  a  debt,  which  has 
been  running  more  than  six  years,  and  which  cannot 
therefore  be  collected  without  a  renewal  of  the  promise, 
must  be  in  writing,  signed  by  th«  debtor,  otherwise  it 
will  be  of  no  force,  (ib.  c.  120.) 

It  is  not  necessary,  however,  that  the  memorandum 
should  be  signed  by  both  parties.  It  is  sufficient  if  the 
name  of  the  party  charged  appear  thereupon  ;  and  he 
will  be  bound,  not  only  when  it  is  signed  by  him,  but 
whenever  his  name  is  written  or  printed  within  the 
body  thereof,  by  his  own  order,  or  loith  his  consent. 

The  advantages  of  reducing  all  contracts  and  agree- 
ments into  writing  must  be  evident  to  every  thinking 
mind,  and  that  from  a  principle  which  all  acknowledge, 
and  to  a  certain  extent,  act  up  to — that  of  reducing 
everything,  as  far  as  practicable,  to  certainty.  If  a 
contract  is  reduced  to  writing,  a  denial  of  it  becomes 
impossible,  from  even  the  most  unprincipled  ;  and 
forgetfulness  of  it,  by  one  side,  immaterial ;  since  the 
proof  of  its- having  been  entered  into  is  in  the  possession 
or  power  of  the  other  side  ;  and  any  disagreement  as  to 
its  nature,  terms  or  conditions,  will  be  less  liable  to 
arise  than  if  left  to  unassisted  memory. 

Written  contracts   are  presumed  to  contain  all  the 

•  Provisions  in  relaiioa  to  the  delivery  of  luorigaged  goods,  &c.,  see  title 
"  Mortgages,''^  Ife. 


28  WRITTEN   AGREEMENTS. 

terms  and  conditions  which  the  parties  to  them  have 
agreed  on ;  and  inasmuch  as  they  manifestly  contain  a 
more  deliberate  and  definite  record  of  the  intention  and 
mutual  understanding  of  the  parties,  than  that  loose 
talk  which'  usually  precedes  a  contract,  the  law  has 
rightly  insisted,  that  the  parties  shall  not  contradict 
such  an  instrument  by  parol  evidence.  If  the  terms  of 
a  written  contract  are  ambiguous,  they  may  be  ex- 
plained verbally  ;  but  no  evidence  to  contradict  what  is 
written,  by  showing  that  the  parties  at  the  time  intended 
something  different,  can  be  offered,  unless  there  has 
been  fraud. 

It  is  not  necessary  that  the  terms  and  conditions  of 
a  contract,  when  in  writing,  should  all  be  specified  in 
the  same  document ;  they  may  be  contained  in  several 
papers,  such  as  letters,  from  which  the  whole  terms 
may  be  collected  ;  it  must,  however,  be  clear  that  there 
is  a  distinct  agreement  between  the  parties — that 
there  has  been  a  proposal  on  one  side,  and  an  accept- 
ance of  such  proposal  on  the  other. 

All  Contracts  and  Agreements  not  wider  seal  are  void 
unless  founded  on  some  consideration.  —  A  valid  and 
sufficient  consideration  or  recompense  for  making,  or 
motive  or  inducement  to  make  the  promise  upon  which 
a  party  is  charged,  is  of  the  very  essence  of  a  contract 
not  under  seal,  and  must  exist,  although  the  contract 
be  reduced  into  writing  ;  otherwise  the  promise  is  void, 
and  no  action  can  be  maintained  thereon. 

All  promises,  therefore,  which  are  wholly  gratuitous, 
are  void  for  want  of  consideration.  To  make  a  promise 
binding,  the  party  making  the  promise  must  have  ob- 
tained some  advantage,  or  the  party  to  whom  it  is  made 
must  have  suffered  some  loss  or  sustained  some  injury 
and  inconvenience,  in  consequence  of  the  one  party 
making  and  the  other  accepting  the  promise. 

It  is  not,  however,  necessary,  in  order  to  constitute 
a  sufficient  consideration,  that  a  benefit  should  accrue 
to  the  person  making  the  promise  ;  it  is  sufficient  that 
something  valuable  flows  from  the  person  to  whom  it  is 
made,  and  that  the  promise  is  the  inducement  to  the 
transaction.  Thus,  where  a  benefit  is  done  to  a  third 
person,  at  the  request  of  the  proraiser,  it  is  sufficient  to 
support  the  promise. 


WRITTEN   AGHEEMENTS.  9.9 

Mere  inadequacy  of  consideration  will  not  render  a 
promise  of  no  force  ;  for  if  a  contract  is  deliberately 
made,  without  fraud,  and  with  a  full  knowledge  of  all 
the  circumstances,  the  least  consideration  will  be  suf- 
ficient. (5  Pick.  384.) 

Promise  to  pay  the  debt  of  another,  when  binding.  — 
It  has  already  been  seen,  that  a  promise  to  pay  the  debt 
of  a  third  person  must  be  in  wi'iting,  or  it  is  of  no  force. 

It  is  not  necessary,  however,  that  the  promise  should 
be  in  writing,  if  the  party  sought  to  be  charged  has 
been  treated  as  the  principal  debtor,  and  not  merely  as 
surety  for  the  debt  of  a  third  person. 

Thus,  the  sale  may  be  to  one  man,  although  the 
goods  are  to  be  delivered  to  another,  and  a  person  may 
promise  to  pay  for  goods  supplied  to  or  for  work  done 
at  his  request,  or  by  his  directions  for  a  third  party,  as 
the  real  debtor,  and  not  in  the  character  of  a  surety ; 
and  if  he  has  been  treated  by  the  person  who  furnished 
the  goods  or  did  the  work,  as  the  party  liable,  and 
credit  has  been  given  to  him,  his  promise  or  under- 
taking to  pay  is  not  a  collateral  promise  to  answer  for 
the  debt  of  another. 

In  order  to  determine  whether  the  party  giving  the 
undertaking  or  making  the  promise  of  payment  is  pri- 
marily or  collaterally  liable,  the  attending  circum- 
stances and  the  situation  of  the  parties  must  be  re- 
garded, as  well  as  the  exact  expressions  used.  If  the 
seller  has  made  the  party  to  whom  the  goods  have  been 
furnished  his  debtor,  if  he  describes  him  as  such  in  his 
books,  or  in  letters,  he  can  only  treat  the  other  as  a 
surety,  and  his  promise  to  be  binding  must  be  in  writ- 
ing. "  I  always,"  said  an  eminent  judge,  "  require 
the  tradesman  to  produce  his  books  to  see  to  whom 
credit  has  been  given."  (2  C  &  M.  430.) 

A  promise  to  pay  the  debt  of  a  third  person  must 
not  only  be  in  writing,  but  it  must  be  fur  a  valuable 
consideration.  The  following  examples  will  explain 
what  is  requisite  to  make  such  a  promise  valid : — 

As  my  brother  owes  you  $28  for  boots  and  shoes,  I  will  pay  you  tliat 
sum  for  him  on  the  1st  of  next  month. 

Thos.  Noakks, 
To  Mr.  Jones.  1st  Jan.,  1849. 

L    T.  3* 


80  UNWEITTEN    AGHEEMENTS. 

This  written  undertaking  is  not  binding,  because  it 
is  for  the  debt  of  another  person,  which  is  already  in- 
curred, and  there  is  no  new  consideration  to  support  it. 
Had  it  been  thus  worded  : — 

In  consideration  of  your  undertaking  not  lo  arrest  ray  brother,  (who  is 
about  to  leave  the  state,)  for  the  debt  o/  $28  which  he  owes  you  for  boots 
and  shoes,  I  hereby  undertake  to  pay  the  amount  on  the  Ist  of  next  month. 

Thos.  Noares. 

To  Mr.  Jones.  1st  Jan.,  1849. 

it  would  have  been  valid  ;  because  the  consideration 
for  it  was  the  forbearing  to  arrest  the  brother.  So  a 
promise  thus  worded  : — 

To  Messrs.  A.  &  B.—  Gentlemen, — I  hereby  undenake  to  pay  for  any 
goods  which  you  may  de.iver  to  Mr.  S." 

would  be  valid ;  as  it  is  evident  that  A.  &  B.  delivered 
the  goods  to  S.  on  the  above  undertaking ;  and  it  is 
the  undertaking  which  is  the  consideration  for  the  de- 
livery of  the  goods. 

Anything,  however  trifling,  done  by  one  party  for 
the  benefit  of  the  other,  will  be  a  legal  consideration. 


UNWEITTEN    CONTEACTS. 

As  the  law  requiring  written  agreements  intended 
only  to  prevent  frauds  and  perjuries,  all  agreements 
which  are,  in  their  own  nature,  free  from  the  danger  of 
introducing  frauds  and  perjuries  are  good,  though  not 
in  writing. 

Proof  of  a  verbal  agreement  will  be  admitted  both  in 
law  and  equity  to  control  a  written  agreement,  when 
the  detection  of  fraud  renders  such  proof  necessary, 
but  not  otherwise. 

A  sealed  contract  may  be  waived  by  a  new  verbal 
agreement.  As  if  one  contract,  under  seal,  to  build  a 
house,  and  after  part  fulfilment,  being  dissatisfied  with 
the  price,  refuse  to  go  on,  and  the  other  party  as  an  in- 
ducement, verbally  agrees  to  pay  him  for  his  work  and 
materials,  and  that  he  shall  not  suffer,  the  latter  agree- 
ment is  valid,  and  puts  an  end  to  the  former. 

All  contracts  are  by  speciality  or  parol ;  if  written 
and  not  sealed,  they  are  to  be  considered  as  parol 
agreements. 


IMPLIED   CONTRACTS.  31 

IMPLIED  CONTRACTS. 

Implied  Contracts  are  those  which  arise,  not  from 
the  special  agreement  of  the  parties,  but  from  the  cir- 
cumstances of  the  case.* 

If  I  employ  a  person  to  transact  any  business  for 
me,  or  perform  any  work,  the  law  implies  that  I  under- 
took to  pay  him  so  much  as  his  labor  deserved. 

If  one  take  up  goods  or  wares  of  a  tradesman,  with- 
out expressly  agreeing  for  the  price,  there  is  an  im- 
plied understanding  that  the  value  of  them  shall  be  paid. 

Another  implied  undertaking  is  when  one  has  re- 
ceived money  belonging  to  another,  without  a  consid- 
eration given  on  the  receiver's  part ;  for  the  law  con- 
strues the  money  received  for  the  use  of  the  owner 
only,  and  implies  that  the  person  so  receiving  it,  un- 
dertook to  account  for  it  to  the  owner.  And  if  he 
unjustly  detain  it,  damages  may  be  recovered.  So, 
money  paid  by  mistake,  or  on  a  consideration  which 
happens  to  fail,  or  through  imposition,  extortion,  or 
oppression,  or  where  any  undue  advantage  is  taken, 
may  be  recovered  back. 

When  a  person  has  laid«  out  and  expended  his  own 
money  for  the  use  of  another,  at  his  request,  the  law 
implies  a  promise  of  repayment. 

Upon  a  stated  account  between  two  merchants  or 
other  persons,  the  law  implies  that  he  against  whom  the 
balance  appears,  has  engaged  to  pay  it  to  the  other, 
though  there  be  not  any  actual  promise.  Actions, 
however,  to  compel  a  person  to  bring  in  and  settle  his 
account  are  now  seldom  used  ;  the  most  effectual  way 
to  settle  these  matters,  is  to  file  a  bill  in  equity,  when  a 
discovery  may  be  had  on  the  dcfendanV s  oath,  without 
relying  merely  on  the  evidence  which  the  plaintiff  may 
be  able  to  produce. 

Every  one  who  undertakes  any  office,  employment, 
trust,  or  duty,  contracts  with  those  who  employ  or  en- 
trust him,  to  perform  it  with  integrity,  diligence  and 
skill.  And  if,  by  the  want  of  either  of  these  qualities, 
any  injury  accrues  to  individuals,  they  have  their  rem- 
edy and  damages  by  a  special  action  on  the  case. 

•  This  laAV  also  applies  to  ihe  rights  and  liabilities  of  Common  Carrirrj  ; 
a  subject  fully  treated  in  the  "  Shipper's  and  Carrier's  Assistant,  and  Ma- 
riiie  and  Inland  Insurer's  Guide,"  one  of  this  series.    Price  2d  cents. 


99  IMPLIED    CONTRACTS. 

With  an  innkeeper,  there  is  an  implied  contract  to 
secure  his  guest's  goods  in  his  inn ;  with  a  common 
carrier,  to  be  answerable  for  the  goods  he  carries ;  with 
a  common  farrier,  that  he  shoes  a  horse  well  without 
laming  him  ;  with  a  tailor,  shoemaker,  or  other  work- 
man, that  he  performs  his  business  in  a  workmanlike 
manner  ;  with  a  consignee  that  he  will  be  vigilant  and 
careful  in  receiving  and  forwarding  goods  entrusted  to 
his  care  ;  and,  upon  refusal  to  receive  goods  consigned 
to  him,  he  would  be  liable  to  the  owner  for  any  loss 
occasioned  thereby.    (6  W.  &  S.  60.) 

If  any  one  cheat  me  by  false  weights  and  measures, 
or  by  selling  one  commodity  for  another,  an  action 
lies  for  damages  upon  the  contract;  since  the  law  im- 
plies that  every  transaction  ought  to  be  fair  and  honest. 

In  contracts,  in  sales,  it  is  constantly  understood  that 
the  seller  undertakes  that  the  commodity  is  his  own.  In 
contracts  for  provisions,  it  is  implied  that  they  are  whole- 
some ;  otherwise,  in  either  case,  action  lies  for  damages. 

Assent  required  in  an  agreement. — Silence  may  some- 
times be  construed  into  assent,  as  when  a  person  is  fully 
aware  of  what  is  doing  affecting  his  interest,  and  he 
makes  no  objection.  Thus,  if  a  man  is  present  when 
a  bargain  is  made,  in  which  he  is  concerned,  and  he 
says  nothing,^  though  it  appears  that  he  is  neither  awed 
into  silence,  nor  in  any  way  hindered  from  speaking, 
and  that  he  is  aware  of  the  nature  of  his  interest. 
(Powel  on  Con.,  132.) 

So  where  a  man  sends  his  servant  to  buy  upon  trust, 
he  is  liable  upon  the  servant's  bargains.  So  where  it 
cannot  be  proved  that  the  servant  was  sent,  but  that  his 
master  knew  he  was  in  the  habit  of  taking  up  goods 
upon  his  (the  master's)  account,  he  will  be  liable,  (ib.) 

Where  a  man  does  not  know,  and  cannot  know  the 
nature  of  the  engagement  that  he  enters  into,  it  is  a 
general  rule  that  his  as.sent  shall  be  valid  when  it  is 
altogether  in  his  favor,  (ib.  138.) 

Ignorance  or  error  will  in  general  invalidate  an  as- 
sent, as  where  the  matter  of  the  bargain  is  falsely  ex- 
plained. This  is  always  the  case  when  there  is  decep- 
tion upon  the  face  of  the  bargain,  (ib.  150.) 


SALE   OF   ESTATES. — PUBCHASE    OF   GOODS.  33 

SALE    AND    CONVEYANCE    OF   ESTATES. 

As  a  general  principle,  the  law  affords  no  redress  for 
oversights  committed  in  the  purchase  of  estates,  which 
might  have  been  avoided  by  ordinary  judgment  and 
vigilance.  But  if  the  vendor,  knowingly,  conceal  latent 
defects,  either  as  regards  the  estate  or  its  title,  he  can- 
not compel  the  execution  of  the  contract,  though  the 
estate  be  sold  expressly  subject  to  all  its  faults. 

A  conveyance  obtained  for  an  inadequate  considera- 
tion, from  one  not  conscious  of  his  right,  by  a  person 
who  had  notice  of  such  right,  will  be  set  aside,  though 
no  actual  fraud  is  proved.  But  if  there  be  no  fraud  in 
the  transaction,  mere  inadequacy  of  price  would  not  be 
deemed  suflScient,  even  in  equity,  to  vacate  a  contract. 

If  it  be  falsely  asserted  that  a  valuation  has  been 
made  of  an  estate  at  a  higher  price  than  really  was  the 
case,  the  purchaser  is  not  bound  to  complete  the  pur- 
chase. So  if  the  particulars  of  the  sale  of  a  house 
describe  it  to  be  in  good  repair  when  it  is  not  so,  the 
purchaser  need  not  fulfil  the  purchase,  unless  there  be 
time  to  complete  the  repairs  before  his  right  of  posses- 
sion commences.  A  false  affirmation  of  the  amount  of 
rent  would  relieve  the  purchaser.     > 

From  the  moment  of  sale,  the  vendee  becomes  the 
virtual  owner,  and,  consequently,  from  that  time,  enti- 
tled to  any  profit,  or  subject  to  any  loss,  which  may 
subsequently  accrue  from  the  estate.  And,  on  the 
other  hand,  the  vendor  is  entitled  to  interest  on  the 
purchase  money  from  the  time  of  the  bargain  to  that  of 
payment. 

PURCHASE,  SALE,  AND  DELIVERY  OF  GOODS. 

With  regard  to  the  sale  of  goods  of  ^50  or  more,  no 
contract  or  agreement  is  binding,  unless  the  goods  are 
to  be  delivered  loithin  a  year,  or  unless  the  contract  be 
made  in  writing,  and  signed  by  the  party  or  his  agent. 

If  one  person  agrees  with  another  for  goods  at  a  cer- 
tain price,  he  may  not  carry  them  away  before  he  has 
paid  for  them  ;  for  it  is  no  sale  without  payment,  unless 
the  contrary  be  expressed.  If  the  seller  says  the  price 
is  ten  dollars,  and  the  buyer  says  he  will  give  it,  the 


84    PURCHASE,  SALE,  AND  DELIVERY  OF  GOODS. 

bargain  is  struck,  and  possession  must  be  immediately 
given  the  buyer  if  the  payment  is  tendered.  But  if 
neither  the  whole  nor  part  of  the  money  be  paid,  nor  the 
whole  of  the  goods  nor  any  part  of  them  delivered,  nor 
any  offer  made,  nor  the  agreement  put  in  writing,  it  is 
no  sale. 

No  sale  is  complete,  so  as  to  vest  in  the  buyer  an 
immediate  right  of  property,  so  Ipng  as  anything  re- 
mains to  be  done  between  the  seller  and  the  buyer  in 
relation  to  the  goods,  such  as  counting,  weighing,  or 
measuring.  But  when  either  are  done,  so  that  the  arti- 
cles are  separate  and  distinct,  the  bargain  is  struck,  and 
the  property  of  the  goods  is  vested  in  the  vendee,  and 
remains  at  his  risk.  And  if  the  property  be  left  in  the 
hands  of  the  seller,  and  it  perish,  the  loss  falls  on  the 
buyer.  So,  if  a  horse  die  in  the  interval  of  sale  and 
delivery,  the  conditions  of  the  statute  having  been  com- 
plied with,  the  vendor  is  entitled  to  his  money,  though 
no  actual  change  of  property  has  taken  place. 

The  delivery  of  a  cent  or  glove  is  sufficient  earnest 
within  the  statute. 

A  sample,  if  it  diminshes  the  bulk  of  the  commodity 
to  be  finally  delivered,  is  a  sufficient  delivery  ;  but  if 
it  be  considered  only  as  a  specimen,  forming  no  portion 
of  the  commodity,  the  delivery  and  acceptance  will  not 
be  sufficient ;  the  delivery  of  a  bill  of  parcels  ;  or  of  the 
receipt,  ticket,  sale-note,  certificate,  or  stamp,  will  be 
sufficient  constructive  delivery.  And  also  as  respects 
bulky  articles,  the  delivery  of  the  key  of  the  warehouse 
in  which  goods  are  deposited ;  the  marking  the  pur- 
chaser's name  on  the  goods  ;  the  payment  of  warehouse 
rent;  the  assignment  of  a  ship  or  bill  of  lading  of  goods 
at  sea  ;  the  sale  of  lumber  lying  on  a  wharf;  or  of  logs 
lying  within  a  boom,  &c. 

If  the  purchaser  of  goods  do  not,  within  a  reasonable 
time  after  the  sale,  pay  for  and  take  them  away,  the 
vendor  may  re-sell  them. 

Where  no  agreement  is  made  in  respect  to  ^delivery, 
it  is,  ordinarily,  the  duty  of  t+ie  buyer  to  take  the  goods  ; 
for  the  seller  has  performed  all  that  is  incumbent  on 
him.  But  if  the  terms  of  the  contract  require  the  seller 
to  deliver  the  goods,  and  no  place  express  or  implied 


PITRCHASE  AND  SALE  OF  GOODS. — WARBANTY  OF  DO.    35 

be  appointed,  the  debtor  may  designate  a  reasonable  and 
proper  place,  not  too  remote  or  inconvenient.  If  no  place 
of  delivery  be  agreed  upon,  the  articles  sold  must  be  de- 
livered at  the  place  where  they  are  at  the  time  of  sale. 

If  any  time  for  the  delivery  be  agreed  upon,  and  the 
vendor  f;iil  to  comply,  the  vendee  will  not  be  bound  to 
accept,  if  a  compliance  with  the  terms  in  respect  to 
time  be  an  essential  consideration  of  the  bargain.  But 
a  neglect  to  deliver  at  the  time  agreed  upon,  will  not 
vitiate  the  contract,  unless  it  works  some  injury  to  the 
vendee. 

Delivery  of  goods  to  an  agent  of  the  purchaser,  such 
as  a  carrier,  if  with  the  knowledge  and  assent  of  the 
purchaser,  is  sufficient. 

Where  an  article  is  not  in  existence,  but  is  to  be 
manufactured  or  made,  no  property  passes  to  the  pur- 
chaser until  it  is  finished  and  ready  to  be  delivered  to 
him,  "though  made  by  his  special  order,  or  even  if  tlie 
price  should  have  been  already  advanced.  Until  the 
thing  is  accepted  by  the  purchaser,  he  acquires  no 
property  in  or  right  to  claim  it ;  and  the  maker  may, 
if  he  choose,  dispose  of  it  to  another  person.  But  if 
made  under  the  superintendence  of  a  person  appointed 
by  the  purchaser,  or  if  he  find  the  materials  with  which 
to  manufacture  it,  the  case  would  be  different. 

The  note  or  memorandum  of  a  bargain  for  the  price, 
of  $50  or  upwards,  must  state  the  2)ricc  for  which  the 
goods  were  sold.  An  order  for  goods  on  "  moderate 
terms"  is  a  sufficient  memorandum.   (5  B.  &  C.  583.) 

The  meaning  of  a  variety  of  documents  may  be  taken 
conjointly  to  prove  a  sale. 

With  respect  to  exchanges,  there  is  no  difference 
between  sales  and  exchanges,  but  a  delivery  on  one  or 
both  sides  is  essential  to  establish  the  contract. 


WARRANTY    OF    GOODS. 

In  all  cases  of  express  warranty,  if  the  warranty 
prove  false,  or  the  goods  are  in  any  respect  different 
from  what  the  vendor  represents  them  to  be,  the  buyer 
is  entitled  to  compensation,  or  he  may  return  them. 


36  AVOIDANCE   OF   CONTRACT. 

But  a  general  warranty  does  not  extend  to  guard  against 
defects  which  are  obvious  to  ordinary  circumspection, 
or  where  the  false  representation  of  the  vendor  is  known 
to  the  vendee ;  as  if  a  horse  with  a  visible  defect  be 
warranted  perfect,  or  the  like,  the  vendee  has  no 
remedy. 

Where  goods  are  sold  by  sample,  there  is  an  implied 
warranty  that  the  bulk  is  equal  to  the  sample,  otherwise 
the  purchaser  is  not  bound  to  take  it  upon  any  terms, 
although  there  may  have  been  no  fraud  on  the  part  of 
the  seller.  Tf,  however,  the  article  should  turn  out  to 
be  merchantable,  from  some  latent  defect  in  the  sample, 
as  well  as  in  the  bulk  of  the  commodity,  the  seller  is 
not  answerable.  The  only  warranty  is,  that  the  whole 
quantity  answers  the  sample. 

If  the  vendor  of  goods  make  any  assertion  respecting 
the  kind,  quality,  or  condition  otthe  article  upon  which 
he  intends  the  vendee  should  rely  as  a  fact,  and  upon 
which  he  does  rely,  that  is  a  warranty.   (9  N.  H.  111.) 

Warranty  must  be  upon  the  sale  ;  if  it  be  made  after, 
it  is  void  for  want  of  consideration. 


AVOIDANCE    OF    CONTEACT. 

After  bargain  for  the  sale  of  goods,  if  the  vendee 
does  not  come  and  pay  for  them,  and  take  them  away 
in  a  reasonable  time  after  request,  the  vendor  may 
elect  to  consider  the  contract  rescinded,  and  re-sell  the 
goods. 

Generally,  if  either  vendor  or  vendee  neglect  to  fulfil 
the  conditions  of  the  sale,  the  other  is  at  liberty  to 
avoid  the  bargain. 

A  contract  for  the  sale  of  goods  may  also  be  avoided 
by  the  Statute  of  Limitations,  which  fixes  the  period 
of  six  years  as  the  term  beyond  which  a  plaintiff' cannot 
lay  his  cause  of  action.  [See  title  "  Limitations  of 
Actions."^ 

Although  a  good  and  sufficient  consideration  is  ne- 
cessary to  the  validity  of  a  simple  contract,  yet  a  con- 
tract may  be  avoided  when  founded  on  a  legal  consider- 
ation, if  the  execution  of  the  engagement  involve  the 
violation  of  any  public  law  or  statute.     Thus  a  contract 


AVOIDANCE  OF  co:ntract.  37 

could  not  be  enforced  which  is  contrary  to  the  act  for 
the  prevention  of  stock-jobbing.  Neither  could  an 
action  be  sustained  on  a  contract  contrary  to  public 
morals,  though  a  consideration  had  been  given  or  re- 
ceived. Nor  for  the  value  of  prints  on  obscene  and 
immoral  subjects.  Nor  for  the  sale  of  intoxicating 
drinks.  Nor  for  the  hire  of  horses  and  vehicles  on 
Sundays,  unless  used  in  works  of  necessity  or  charity. 
All  secular  contracts  consummated  on  Sunday  are 
void ;  as  well  as  all  contracts  which  are  repugnant  to 
law,  sound  policy,  or  public  morals. 

In  contracts  obtained  by  deception  or  misrepresen- 
tation, there  must  be  some  actual  damage  done  to  the 
plaintiff,  to  obtain  ground  for  civil  action. 

When  persons  are  employed  to  bid  for  the  owner  at 
auction,  not  in  order  to  prevent  a  sacrifice,  but  to  ad- 
vance the  price  of  the  goods,  by  pretended  competi- 
tion, the  purchaser  may  treat  the  sale  as  void,  if,  in 
fact,  the  purchaser  be  thereby  misled. 

Contracts  in  restraint  of  trade  and  business  are  void, 
as  they  militate  against  public  policy.  But  it  is  diiTer- 
ent  if  one  contract,  for  a  valuable  consideration,  not  to 
carry  on  a  particular  trade,  or  not  to  exercise  it  in  a 
particular  place. 

If  a  seller  and  purchaser  combine  for  the  purpose  of 
secreting  property  from  the  creditors,  with  a  mutual 
fraudulent  interest,  the  sale  is  void. 

When  a  sale  is  made  without  consideration,  it  is  void 
as  to  creditors. 

The  seller  retaining  possession  of  the  goods  after 
sale,  is  evidence  of  fraud. 

Partners  are  liable  for  the  fraud  of  one  of  the  firm, 
or  of  their  agent,  in  the  sale  of  partnership  property. 
But  the  firm  is  not  bound  if  one  partner  give  partner- 
ship security  for  a  private  debt  of  his  own,  and  the  cre- 
ditor have  knowledge  that  it  is  out  of  the  scope  of 
partnership  dealing. 

Verbal  evidence  of  fraud  is  admissible  against  a 
written  agreement. 

When  the  assignment  is  fraudulent,  or  not  assented 
to  by  creditors,  a  creditor  may  proceed  to  secure  his 
debt  by  attachment,  or  by  a  trustee  process. 

L    T.  4 


38  PAYME^T. 

Contracts  may  be  rescinded  or  waived,  by  all  the 
parties  to  it  dissenting  from  the  bargain  before  the 
period  of  performance. 

Where  a  purchaser  buys  on  the  faith  of  a  false  re- 
presentation by  the  seller,  touching  the  essence  of  the 
contract,  the  sale  will  be  set  aside  in  equity,  whether 
the  misrepresentation  were  the  result  of  fraud  or  mis- 
take. (Story's  R.  700.) 

If  a  seller  mislead  the  purchaser  by  a  false  or  mis- 
taken statement  as  to  any  essential  circumstance,  the 
sale  is  voidable,  {ih.) 

So,  where  a  person  obtains  goods  upon  a  false  re- 
presentation as  to  the  value  of  his  property,  and  gives 
his  note  in  payment,  the  seller  need  not  wait  until  the 
note  falls  due,  but  may,  immediately  upon  discovering 
the  fraud,  waive  the  contract,  and  bring  an  action  to 
recover  the  value  of  the  goods.  But  in  order  to  do 
this,  the  goods  must  have  been  obtained  upon  the  false 
representation  of  the  purchaser ,  and  not  of  others,  as 
to  the  value  of  his  property. 


PAYMENT. 

In  some  branches  of  trade,  custom  has  established  a 
general  usage  as  to  the  period  of  credit  upon  sales  of 
goods,  and,  where  no  specific  stipulation  is  made  to  the 
contrary,  this  customary  credit  is  as  much  a  part  of  the 
contract  as  if  expressly  agreed  upon  ;  the  law  implying 
that  all  persons  deal  according  to  the  general  usage, 
unless  the  contrary  appear. 

"Where  no  such  usage  prevails,  and  no  time  of  pay- 
ment is  specified  in  the  contract  of  sale,  the  money  is 
demandable  immediately  upon  the  delivery  of  the  goods. 

If  the  vendor  stipulate  to  deliver  certain  goods  within 
a  limited  time,  he  cannot  demand  payment  till  the 
whole  of  the  goods  are  delivered. 

A  person  contracting  to  deliver  a  certain  quantity  of 
goods,  and  failing  to  deliver  the  whole  quantity  agreed 
upon,  may  recover  for  the  part  delivered  and  accepted 
by  the  buyer.  The  buyer  can  only  be  exonerated  from 
payment  by  refusing  to  accept  a  part  ;  for,  if  he  accept 
and  take  the  benefit  of  part,  no  protest,  at  the  time  of 
acceptance,  will  relieve  him  from  liability  of  payment. 


INTEREST,    WHEN    IT    MAY    BE    CLAIMED.  39 

With  respect  to  interest,  it  is  determined  that  interest 
is  not  allowable  on  a  demand  for  goods  sold  and  deliv- 
ered, unless  where  there  is  a  specific  agreement  for 
that  purpose ;  as  by  a  bill  of  exchange,  promissory  note, 
or  an  express  promise  to  pay  interest ;  then  the  vendor 
is  entitled  to  interest  from  the  time  specified. 

So,  when,  from  the  usage  of  a  particular  trade,  the 
intention  of  the  parties,  that  a  book-debt  shall  bear  in- 
terest, can  be  collected,  interest  will  be  allowed. 


INTEBEST,  WHEN  IT  MAY  BE  CLAIMED. 

Interest  is  allowable,  where  there  has  been  either  an 
express  or  an  implied  contract  therefor  ;  and  a  contract 
to  pay  interest  will  be  implied  either  from  a  general 
mercantile  usage,  or  custom  ;  as  in  the  case  of  bills  of 
exchange  and  promissory  notes,  upon  which,  in  the 
absence  of  any  other  agreement,  interest  runs  from  the 
day  when  the  principal  ought  to  be  paid. 

If  a  note  be  payable  on  demand,  and  there  is  no  ex- 
press agt'eement  in  relation  to  interest,  it  does  not 
commence  running  till  after  a  demand  is  made. 
Where  no  other  demand  is  made,  the  commencement 
of  a  suit  for  the  money  will  be  regarded  as  a  demand 
for  the  purpose  of  computing  interest.   (9  Pick.  3G9.) 

Interest  is  never  allowed  upon  an  open  and  running 
account,  unless  by  express  agreement ;  but  as  soon  as 
the  account  is  stated,  and  rendered  to  the  debtor,  and 
no  objection  is  made  to  it  by  debtor,  interest  begins  to 
run.  (8  Verm.  258.)  An  account  current,  received 
and  not  objected  to  within  a  reasonable  time,  becomes 
a  settled  account,  bearing  interest  from  the  time  it  is 
stated.  (I  Baldwin,  530.) 

A  demand  of  payment  of  an  unsettled  claim  for 
goods  sold  and  delivered,  or  services  rendered,  entitles 
the  party  to  interest  from  the  time  of  the  demand,  and  a 
presentment  of  the  account  or  commencement  of  a  suit 
is  sufficient  demand  upon  which  to  found,  and  from 
which  to  date,  a  claim  of  interest.   (22  Pick.  291.) 

An  agreement  for  interest  will  be  implied  from  the 
particular  course  of  dealings  between  the  parties,  or  the 
special  custom  of  one  party  known  and  acceded  to  by 
the  other ;  as  where  it  is  the  custom  of  a  particular 


40  INTEREST,    WHEN      IT    MAY    BE    CLAIMED. 

person  to  charge  interest  upon  all  sales  made  by  him, 
after  the  expiration  of  a  certain  time,  in  which  case, 
he  may  charge  all  his  customers  with  interest,  who 
have  knowledge  that  such  is  his  custom.  So  if,  ac- 
cording to  an  established  usage,  or  an  understanding 
between  the  parties  arising  out  of  their  mode  of  deal- 
ing or  otherwise,  a  certain  term  of  credit  is  to  be  given, 
no  interest  can  be  claimed  until  after  the  expiration  of 
that  term.  (8  Wend,  109.) 

So,  a  contract  to  pay  interest  is  implied,  where  the 
money  of  one  person  has  been  used,  or  detained  wrong- 
fully, by  another,  or  been  kept  by  another,  when  it 
should  have  been  paid  over.   (9  Pick.  3G9.) 

Where  an  agent,  having  received  money,  unreason- 
ably neglects  to  inform  his  employers  of  it,  he  is  liable 
for  interest  from  the  time  when  he  ought  to  have  given 
information.  So,  interest  is  to  be  allowed  where  the 
law  by  implication  makes  it  the  duty  of  the  party  to 
pay  over  the  money  to  the  owner  without  any  previous 
demand  on  his  part.   (i6.) 

Interest  is  to  be  allowed  upon  money  paid. at  the  re- 
quest and  to  the  use  of  another  from  the  time  of  pay- 
ment, (I  Pick.  118.) 

Manner  of  computing  interest  on  notes  where  partial 
payments  have  been  made.  —  In  casting  interest  upon 
bonds,  notes,  &c.,  upon  which  partial  payments  have 
been  made,  every  payment  is  to  be  first  applied  to  keep 
down  the  interest ;  but  the  interest  is  never  allowed  to 
form  a  part  of  the  principal,  so  as  to  carry  interest,  for 
the  effect  in  such  case  would  be  to  give  compound  in- 
terest, which  the  law  does  not  allow.  To  avoid  this, 
the  following  rule  has  been  adopted  :  — 

Compute  the  interest  on  the  principal  sum,  from  the 
time  when  the  interest  commenced  to  the  first  time 
when  a  payment  was  made,  which  exceeds,  either  alone 
or  in  conjunction  with  the  preceding  payment,  if  any, 
the  interest  at  that  time  due  ;  add  that  interest  to  the 
principal,  and  from  the  sum  subtract  the  payment  made 
at  that  time,  together  with  the  preceding  payments,  if 
any ;  and  the  remainder  forms  a  new  principal,  on 
which  compute  and  subtract  the  interest,  as  upon  the 
first  principal ;  and  proceed  in  this  manner  to  the  time 
of  the  judgment    (17  Mass.  117.) 


LIMITATIONS    OF   ACTIONS.  41 

LIMITATIONS    OF     ACTIONS. 

(Laws  R.  S.  c.  120.) 

What  debts  must  be  collected,  and  what  actions  must 
be  brought  within  six  years  : — 

First,  all  actions  of  debt,  founded  upon  any  contract, 
or  liability  not  under  seal,  except  such  as  are  brought 
upon  the  judgment  or  decree  of  some  court  of  record 
of  the  United  States,  or  of  this,  or  some  other  of  the 
United  States: — on  judgments  rendered  in  any  court, 
not  being  a  court  of  record  : — for  arrears  of  rent : — of 
assumpsit,  or  upon  the  case,  founded  on  any  contract 
or  liability,  express  or  implied  : — for  waste  and  for  tres- 
pass upon  land  : — of  replevin,  and  all  other  actions  for 
taking,  detaining  or  injuring  goods  or  chattels : — all 
other  actions  on  the  case,  except  actions  for  slander- 
ous words,  and  for  libels. 

Exception  in  the  case  of  attested  promissory  notes 
and  bank  bills.  —  None  of  the  foregoing  provisions 
shall  apply  to  any  bills,  notes,  or  other  evidences  of 
debt,  issued  by  any  bank  ;  nor  to  a  promissory  note 
signed  in  the  presence  of  an  attesting  witness,  the 
action  upon  which  may  be  brought  by  the  original 
payee,  or  by  his  executor  or  administrator,  at  any  time 
within  twenty  years. 

Exception  in  the  case  of  mutual  accounts  or  accounts 
current.  —  All  actions  for  debt  and  assumpsit,  for  the 
balance  of  an  open  or  mutual  account,  may  be  brought 
within  six  years  from  the  time  of  the  last  item  proved. 

Actions  to  be  brought  within  two  years. — All  actions 
for  assault  and  battery,  false  imprisonment,  slanderous 
words,  and  for  libels,  shall  be  commenced  within  two 
years. 

Actions  against  sheriffs. — All  actions  against  sheriffs, 
for  the  misconduct  or  negligence  of  tijeir  deputies,  shall 
be  commenced  within  four  years. 

Actions  to  be  brought  within  twenty  years. — All  per- 
gonal actions  on  any  contract,  not  limited  by  the  fore- 
going sections,  or  by  any  other  law  of  this  jCommon- 
wealth,  shall  be  brought  within  twenty  years 

Exceptions  on  account  of  minority,  S^^c. — If,  when  a 
cause  of  action  first  accrues,  the  claimant  is  a  minor, 

L.  T.  4* 


42  LIMITATIONS    OF    ACTIONS. 

a  married  woman,  insane,  imprisoned,  or  out  of  the 
United  States,  or  if  the  defendant  is  out  of  this  state, 
the  time  of  limitation  does  not  begin  till  the  disability 
is  removed.  ^ 

The  time  of  a  defendant's  absence  from  this  state, 
after  a  cause  of  action  accrues,  is  not  counted  as  part 
of  the  time  of  limitations  ;  nor  is  the  time  of  the  con- 
tinuance of  a  war  between  this  country  and  that  of  an 
alien  plaintiff. 

Exception  in  case  of  the  death  of  either  parti/.  — 
In  case  either  party  shall  die  within  the  time  herein 
limited,  or  within  thirty  days  thereafter,  if  the  cause  of 
action  does  by  law  survive,  the  action  may  be  com- 
menced by  or  against  the  executor  or  administrator  of 
the  deceased  within  two  years  after  the  grant  of  letters 
testamentary  or  of  administration. 

Exception  where  the  cause  of  action  is  fraudulently/ 
concealed.  —  If  any  person  shall  fraudulently  conceal 
the  cause  of  an  action  from  the  knowledge  of  the  person 
entitled  thereto,  the  action  may  be  commenced  within 
six  years  after  the  person,  who  is  entitled  to  bring  the 
same,  shall  have  made  such  discovery. 

Acknowledgment  or  new  promise  must  be  in  writing. 
Any  acknowledgment  of  indebtedness  or  promise,  to 
prevent  the  operation  of  the  statutes  of  limitations,  must 
be  made  in  writing,  and  signed  by  the  party  chargeable 
thereby. 

Acknotoledgment  or  promise  by  one  of  several  debtors. 
— One  of  several  joint  contractors  shall  not  lose  the 
benefit  of  a  limitation  by  reason  of  any  acknowledg- 
ment or  new  promise  made  or  signed  by  any  of  the 
other  joint  contractors. 

Effect  of  part  paymeyit. — No  memorandum  or  en- 
dorsement of  any  payment  of  principal  or  interest,  made 
on  a  note  or  other  writing  by  one,  by  or  on  behalf  of  the 
party  to  whom  such  payment  purports  to  be  made,  is 
deemed  sufficient  proof  of  payment  to  take  the  case  out 
of  the  statute. 


PART    II. 

MODE  OF  ENFORCING 
PAYMENT   OF  DEBTS. 

MODE  OF  FBOCEDUBE  IS  CIVIL  ACTIONS. 

The  person  who  commences  an  action  is  termed  the 
plaintiff,  and  the  person  against  whom  the  action  is 
brought,  the  defendant.  Before  the  suit  is  begun,  the 
attorney  of  the  plaintiff  usually  writes  a  letter  to  the 
defendant,  apprising  him  of  the  demand  of  his  employ- 
er, and  that,  if  not  complied  with,  legal  proceedings  will 
be  instituted :  this  intimation  producing  no  satisfacto- 
ry result,  the  action  begins  by  issuing  a  writ  to  arrest 
the  defendant,  (see  title,  "  Writs,  Attachments,"  &.c.,) 
or  to  attach  his  property  and  summon  him  to  appear 
before  the  court  which  is  to  try  the  action,  at  a  time 
stated  in  the  summons,  or  simply  to  summons  him  to 
appear  before  the  court  at  a  stated  time. 

If  the  defendant  does  not  appear,  then  he  is  default- 
ed, and  at  the  end  of  the  term  in  which  the  action  is 
entered,  judgment  is  rendered  against  him,  and  execu- 
tion is  issued  against  his  goods  and  estate,  or  his  body. 
Where  the  defendant  wishes  to  appear,  he  or  his  attor- 
ney goes  to  the  clerk  of  the  court  at  which  the  writ  is 
returnable,  and  requests  him  to  enter  his  appearance 
in  the  suit,  which  is  accordingly  done.  The  next  step 
for  him  is  to  plead,*  or  to  state  the  grounds  of  his  de- 

*  BUI  of  patticulars. — Before  appearance,  or  at  the  commencement  of  the 
action,  if  the  demand  of  the  plaintift'  is  not  disclosed  in  the  declaration  in 
the  writ,  the  defendant  may  require  that  it  be  exhibited.  A  Bill  of  Particu- 
lars is  a  statement  in  writing  of  what  the  plaintiff  seeks  to  recover  in  his 
action.  Its  object  is  to  furnish  the  defendant  with  a  better,  or  more  specific 
statement  of  the  plaintiff's  cause  of  action,  than  is  to  be  collected  from  tlia 
declaration  in  the  writ.  When  the  defendant  pleads  a  set-off,  he  will  al' 
ways  be  required  to  give  a  bill  of  particulars. 


44  MODE    OF   PROCEDURE    IN    CIVIL    ACTIONS. 

fence.  Where  he  intends  to  plead  the  general  issue 
only,  that  is,  to  deny  the  plaintiff's  claim  and  call  upon 
him  for  proof,  it  will  be  sufficient  to  do  so,  any  time 
before  the  trial ;  but  where  any  special  matter  of  de- 
fence is  relied  upon,  as  accord  and  satisfaction,  tender, 
set-off,  &c.,  the  courts  require  the  defendant  to  file  it, 
within  a  certain  time  after  the  return  of  the  writ,  in 
order  that  the  plaintiff  may  have  reasonable  notice  of  the 
fact,  so  that  he  may  be  prepared  to  meet  it,  at  the  trial. 
On  trial,  the  jury  being  sworn,  the  plaintiff,  by  him- 
self, or  his  attorney,  states  his  case,  and  puts  in  his  ev- 
idence; he  is  followed  by  the  defendant's  counsel,  who 
takes  the  grounds  of  his  defence,  and  puts  in  his  evi- 
dence; and  the  arguments  are  then  heard,  usually  that 
of  the  defendant  first,  then  that  of  the  plaintiff. 

Both  sides  having  finished,  the  judge  sums  up  the 
whole  to  the  jury,  omitting  all  superfluous  circumstan- 
ces ;  observing  vvherein  the  main  question  and  princi- 
pal issue  lie;  stating  what  evidence  has  been  given  to 
support  them,  with  such  remarks  as  he  thinks  necessa- 
ry for  their  direction;  and  giving  his  opinion  on  mat- 
ters of  law  arising  upon  that  evidence 

If  any  of  the  ruling  in  matter  of  law  of  the  presid- 
ing judge  are,  in  the  opinion  of  either  party,  erroneous, 
they  may  except  to  them,  and  if  the  case  goes  against 
them,  they  may  have  a  hearing  upon  such  exceptions  be- 
fore all  the  judges  of  the  supreme  judicial  court.  Ifthe 
court  sustains  the  exceptions,  a  new  trial  is  granted. 
But  if  it  shall  appear  that  such  exceptions  are  frivo- 
lous, immaterial,  or  intended  for  delay,  double  costs  and 
interest  may  be  awarded  against  the  party  taking  the 
exceptions. 

Next  follows  the  verdict ;  and  after  it,  unless  a  mo- 
tion is  made  for  a  new  trial,  (which  must  usually  be 
made  within  four  days  after  the  verdict,)  judgment  is 
rendered. 

If  the  judgment  is  not  suspended  or  reversed,  the 
result  and  last  stage  in  the  proceedings  of  a  suit  is  the 
execution,  or  the  putting  the  sentence  of  the  law  in 
force.  Executions  are  of  divers  kinds.  If  the  plaintiff 
obtain  a  verdict  whereby  the  possession  of  land  is 
awarded  to  him,  a  writ  is  directed  to  the  sheriff,  com- 


WRITS,    ATTACHMENTS,    JUDGMENT,    ARREST,    &,C.     45 

manding  him  to  give  actual  possession  to  the  plaintiff; 
and  the  sheriff  may  justify  breaking  open  doors  if  the 
possession  is  not  peaceably  yielded.  But  if  quietly 
given  up,  the  delivery  of  a  twig  or  turf,  or  the  ring  of  the 
door,  in  the  form  of  putting  in  possession,  is  sufficient. 

Executions  in  actions,  where  money  only  is  recover- 
ed, may  be  entered  against  the  body  of  the  defendant, 
or  against  his  goods  and  chattels,  or  against  all  three, 
his  body,  land,  and  goods. 

Every  writ  of  execution  must  be  sued  out  within  a 
year  after  the  judgment  is  entered,  and  not  afterwards. 

For  the  most  part,  costs  are  paid  by  the  vanquished 
party,  except  in  a  ievi  instances,  privileged  by  statute 
or  prescription. 


WEITS,   ATTACHMENTS,  AREEST,   JUDGMENT, 
AND  EXECUTION. 

Justices'  Jurisdiction. — Justices  of  the  peace  have 
jurisdiction  in  all  civil  actions  wherein  the  debt  or  dama- 
ges does  not  exceed  twenty  dollars.  Execution  may  be 
made  to  run  into  any  county  of  the  Commonwealth. 

Proceedings  for  the  collection  of  debts,  exceeding 
twenty  dollars,  must  be  commenced  before  the  Court 
of  Common  Pleas.  To  bring  an  action  of  debt  in  the 
Supreme  Court  the  sum  must  be  six  hundred  dollars 
if  in  the  county  of  Suffolk,  and  three  hundred  dollars 
if  in  other  counties. 

Appeals. — Appeals  may  be  taken  from  Justices  of 
the  Peace  to  the  court  of  Common  Pleas.  And  on  all 
matters  of  law  from  the  Common  Pleas  to  the  Supreme 
Judicial  Court. 

Writs. — The  suing  out  of  a  writ,  with  an  actual 
intention  of  service,  is  a  commencement  of  the  action, 
and  will  save  the  demand  from  the  effect  of  the  statute 
of  limitations,  or  of  a  tender. 

The  writ,  how  jramed. — The  original  writ  may  be 
framed,  either  to  attach  the  goods  or  estate  of  the  de- 
fendant, and  for  want  thereof  to  take  his  body  ;  or  it 
may  be  an  original  summons,  either  with  or  without  an 
order  to  attach  the  goods  or  estate.  Original  writs  in 
which  the  plaintiff  is  not  an  inhabitant  of  this  Stale, 
must  be  indorsed  by  a  person  residing  in  the  State. 


46     WRITS,    ATTACHMENTS,    JUDGMENT,    ARREST,    fcC. 

Original  writ  when  to  he  served. — Those  issuing 
from  the  supreme  court  or  common  pleas,  shall  be 
served  fourteen  days,  at  least,  before  the  term  at  which 
they  are  returnable,  and  those  from  justices  of  the 
peace,  seven  days. 

The  debtor  cannot  he  arrested,  and  his  property  at- 
tached on  the  same  writ.  —  When  the  creditor  has  the 
body  of  the  debtor,  his  right  to  proceed  against  his  pro- 
perty is  suspended,  and  vice  versa. 

Arrest  and  imprisonment  of  the  debtor  upon  the  writ. 
—[See  title  "  Imprisonment  for  Debt."] 

Attachment  upon  the  writ.  —  The  attachment  of  pro- 
perty upon  a  writ  is  one  of  the  most  common  and 
effectual  means  of  securing  a  debt.  The  property  at- 
tached is  deemed  to  be  in  the  custody  of  the  law,  and 
is  to  be  retained  by  the  officer  for  the  purpose  of  satis- 
fying the  claim  of  the  creditor,  in  case  he  shall  obtain 
judgment  in  the  suit,  take  out  execution,  and  levy  it 
upon  the  property  within  a  limited  time. 

Attached  goods  shall  be  delivered  to  the  debtor, 
upon  his  depositing  the  appraised  value  in  money,  or 
giving  a  bojd  therefor. 

Articles  exempt  from  attachment  by  statute. 

First.  The  necessary  wearing  apparel  of  the  debtor, 
and  of  his  wife  and  children;  one  bedstead,  bed,  and 
the  necessary  bedding  for  every  two  persons  of  the 
family  ;  one  iron  stove,  used  for  warming  the  dwelling 
house  ;  and  fuel,  not  exceeding  the  value  of  ten  dollars, 
procured  and  designed  for  the  use  of  the  family  : 

Secondly.  Other  household  furniture,  necessary 
for  the  debtor  and  his  family,  not  exceeding  fifty  dollars  : 

Thirdly,  The  bibles  and  school  books  used  in  the 
family : 

Fourthly.  One  cow,  six  sheep,  one  swine,  and  two 
tons  of  hay  ;  the  six  sheep  not  to  exceed  thirty  dollars. 

Fifthly.  The  tools  and  implements  of  the  debtor, 
necessary  for  carrying  on  his  trade  or  business,  not 
exceeding  fifty  dollars  in  value  : 

Sixthly.  The  uniform  of  an  officer,  non-commis- 
sioned officer  or  private,  in  the  militia,  and  the  arms 
and  accoutrements  required  by  law  to  be  kept  by  him  : 


WRITS,    ATTACHMENTS,    JUDGMENT,    ARREST,    itC.     47 

Seventhly.  Rights  of  burial,  and  tombs  whilst  in 
use  as  repositories  for  the  dead. 

Articles  in  general  exempted  from  attachment  from 
their  peculiar  character  and  situation. — Private  papers 
and  account  books  ;  promissory  notes ;  lien  ;  mooey 
in  the  hands  of  an  officer  ;  goods  which  cannot  be  re- 
turned to  the  debtor  in  the  same  plight  in  which  they 
were  taken,  such  as  green  hides  in  a  vat,  fruit,  &c. ; 
the  interest  of  a  gratuitous  bailee;  goods  in  the  hands  of 
a  pawnee ;  goods  in  transitu  as  the  property  of  the  con- 
signee; a  boat,  cable  or  anchors  in  use,  and  necessary  for 
the  safety  of  the  vessel.  If  an  officer  intermingle  goods 
attached,  with  those  of  the  debtor,  so  that  they  cannot 
be  distinguished,  he  loses  his  attachment. 

Articles  which  cannot  be  removed. — If  the  articles  of 
personal  property  attached  are  of  such  a  nature  that 
they  cannot  well  be  removed,  the  goods  are  hoiden,  if 
the  officer  deposit  a  copy  of  his  writ  with  the  town 
clerk,  where  the  attachment   is  made. 

Property  of  a  perishable  nature,  or  live  animals,  at- 
tached, may  be  appraised  by  three  persons  duly  sworn  ; 
and  the  debtor  may  thereupon  take  the  property  on  de- 
positing security  for  the  amount  of  the  appraisal  ;  or 
the  officer  may  sell  it  and  hold  the  proceeds  to  satisfy 
the  judgment  that  may  be  obtained  in  the  suit.  The 
attaching  creditors  and  debtor  may,  by  agreement,  sell 
any  personal  property  attached  on  the  original  writ. 

Bail  Bond. — The  debtor,  arrested  on  an  original 
writ,  may  give  bail,  which  is  done  by  entering  into  a 
bond,  with  sureties,  and  conditioned  "that  the  defendant 
shall  appear  and  answer  to  the  plaintiff  in  the  suit,  and 
that  he  shall  abide  the  judgment  of  the  court  thereon, 
and  shall  not  avoid."  [See  title  "  Imprisonment  for 
Debt:'] 

How  long  after  judgment  goods  attached  on  the  writ 
may  be  held.  —  If  the  plaintiff  obtain  judgment  on  his 
suit,  then  the  property  attached  on  the  writ  will  be 
held  for  thirty  days  after  the  judgment,  in  order  to  their 
being  taken  in  execution  ;  and  if  the  attachment  is 
made  in  the  county  of  Nantucket,  and  the  judgment  is 
endered   in  any  other  county,  or  if  the  judgment  is 


48    WRITS,    ATTACHMENTS,   JUDGMENT,    ARREST,    kC. 

rendered  in  Nantucket,  and  the  attachment  is  made  in 
any  other  county,  the  property  will  be  held  for  sixty 
days  after  final  judgment. 

Execution.  —  Execution  may  be  taken  out  at  any 
tiMe  after  twenty-four  hours  from  the  rendition  of  the 
judgment,  or  from  a  reasonable  return  of  a  previous 
execution,  and  within  one  year  after  judgment  rendered. 
If  an  execution  be  sooner  issued  and  levied,  the  levy  is 
void.  Neither  can  an  execution  be  taken  out  after  the 
expiration  of  a  year. 

Renewal  of  Execution. — The  creditor  may  renew  his 
execution  from  year  to  year,  by  paying  to  the  clerk  of 
the  court  of  common  pleas  the  sum  of  twenty-five  cents. 
If  he  neglect  to  do  this,  he  will  have  to  resort  to  a  writ  of 
scire  facias,  or  an  action  of  debt,  to  revive  his  judgment. 

Time  within  which  judgment  marj  be  obtained.  — 
Where  there  is  no  controversy,  and  the  case  is  default- 
ed, judgment  is  rendered  as  of  the  last  day  of  the  term, 
unless  otherwise  expressly  ordered  by  the  court.  If 
there  is  a  controversy,  the  trial  is  seldom,  if  ever,  had 
at  the  first  term  at  which  the  writ  is  returnable  ;  but 
the  case  is  continued  to  the  second  term,  making, 
where  the  action  is  brought  in  the  Court  of  Common 
Pleas,  some  six  months  after  the  writ  is  returned,  before 
the  case  is  tried.* 

Goods  seized  on  execution  when  sold  at  auction. — 
When  goods  are  seized  on  execution,  they  shall  be 
safely  kept,  at  the  expense  of  the  debtor,  for  four  days 
at  the  least,  and  may  be  sold  by  public  auction,  within 
fourteen  days  next  after  the  seizure,  the  officer  having 
first  advertised  the  same  forty-eight  hours  at  least  be- 
fore the  time  of  sale,  unless  the  debtor  shall,  before 
such  sale,  redeem  them.     If  the  value  of  the  goods  to 

•  In  Boston,  the  justices'  courts  are  held  every  Wednesday  and 
Saturday,  on  which  days,  all  writs  issuing  from  such  courts,  are  return- 
able. Every  justice's  writ  must  be  served  at  least  seven  days  before  the 
return  day.  If  no  appearance  is  made  for  the  defendant,  the  ca$e  is  de- 
faulted on  the  return  day  ;  if  any  defence  is  to  be  made,  the  action  is  tried 
on  the  next  court  day  after  the  return  day  ;  so  that  a  parly  can  ol'lain 
judgment  in  an  action  in  the  justices'  court  within  seven  or  ten  days  alter 
the  suit  is  commenced. 

The  delay  and  consequent  expense  may  he  obviated,  by  taking  from 
the  debtor,  when  goods,  &o.,  are  sold,  a  note,  with  power  to  confess 
jadgmeut.    (See  title  "  Acknowledgment  of  Debt,") 


TRUSTEE    KO    CESS.  49 

be  sold  exceeds  the  sum  of  $300,  the  officer,  if  request- 
ed by  either  party,  must  give  notice  by  advertisement 
in  some  newspaper  published  in  the  county,  and  the 
sale,  in  such  case,  may  take  place  at  any  time  after  the 
expiration  of  four  days,  and  within  thirty  days. 

Real  estate  taken  on  execution. — When  execution  is 
levied  on  real  estate,  the  land  must  be  appraised,  and 
the  creditor  receive  possession  from  the  officer.  The 
execution  must  be  recorded  within  three  months.  The 
debtor  has  one  year  to  redeem  his  land,  by  paying  the 
debt,  costs,  and  interest,  and  such  reasonable  expenses 
as  may  be  incurred  in  repairing  and  improving  prem- 
ises; deducting  the  amount  of  profits  received  by  the 
creditor,  or  which  he  might  have  received. 


TKUSTEE    PSOCESS. 

(Laws,  R.  S.  c.  109.) 

Who  are  liable  as  trustees.  —  Every  person,  having 
any  goods,  effects,  or  credits  of  a  debtor,  entrusted  or 
deposited  in  his  hands  or  possession  at  the  time  of  ser- 
vice of  the  writ,  may  be  summoned  as  a  trustee  of  such 
debtor,  and  such  goods,  effects  or  credits,  will  be  held 
to  respond  to  the  final  judgment  in  the  suit,  precisely 
as       attached  by  the  ordinary  process. 

What  demands  are  not  attachable  by  this  process.  — 
No  person  shall  be  adjudged  a  trustee,  in  either  of  the 
cases  following,  to  wit:  First,  By  reason  of  having 
drawn,  accepted,  made  or  indorsed  any  negotiable  bills, 
drafts,  notes,  or  other  security. 

Secondly,  By  reason  of  any  money  or  other  things, 
received  and  collected  by  him,  as  a  sheriff  or  other 
officer,  by  force  of  an  execution,  or  other  legal  process, 
in  favor  of  the  principal  defendant. 

Thirdly,  By  reason  of  any  money  in  his  hands  as 
a  public  officer,  and  for  which  he  is  accountable  mere- 
ly as  such  officer,  to  the  principal  defendant. 

Fourthly,  By  reason  of  any  money  or  other  thing 
due  from  him  to  the  principal  defendant,  unless  it  is, 
at  the  time  of  the  serving  of  the  writ  on  him,  due  ab- 
solutely and  without  depending  on  any  contingency;  nor, 

L.  T.  5 


fid  TRUSTEE    PROCESS. 

Fifthly,  By  reason  of  any  debt  due  from  him  on  a 
judgment,  so  long  as  he  is  liable  to  an  execution  on 
the  judgment. 

'    Sixthly,  For  debt  due  for  services  of  wife  or  minor 
children,  except  for  the  excess  above  twenty  dollars. 

Effect  of  payments  made  or  liabilities  incurred  hy 
trustee,  after  service  of  writ  but  before  service  has  come 
to  his  knowledge.  —  If,  after  the  service  on  the  trustee, 
but  before  he  has  any  knowledge  thereof,  he  shall  in 
good  faith  make  any  payment,  or  become  in  any  way 
liable  to  any  third  person,  for  or  on  account  of  the 
goods,  effects  or  credits  in  his  hands,  or  shall  have  de- 
livered the  same  to  the  original  defendant,  or  to  any 
other  person  entitled  thereto,  he  shall  be  allowed  there- 
for, in  the  same  manner  as  if  the  payment  or  delivery 
had  been  made,  or  the  liability  incurred,  before  the 
service  of  the  writ  on  him. 

Trustee  when  and  how  discharged.  —  If  any  sup- 
posed trustee  shall  appear,  either  in  person  or  by  at- 
torney, and  declare  in  writing  that  he  had  not,  in  his 
hands  or  possession,  at  the  time  when  the  writ  was 
served  on  him,  any  goods,  eff'ects  or  credits  of  the 
principal,  and  shall  submit  himself  thereupon  to  exa- 
tmination  upon  his  oath,  and  if  the  plaintiff  shall  de- 
cline to  examine  him,  or  if  upon  such  examination  his 
declaration  shall  appear  to  the  court  to  be  true,  he  shall 
be  discharged. 

Trustee  may  be  examined  on  oath.  —  Every  such  de- 
claration may  be  signed  by  attorney,  and  if  the  plaintiff* 
proceeds  to  examine  the  supposed  trustee  thereupon, 
he  shall  propose  interrogatories  in  writing,  which  shall 
be  answered  in  writing,  and  signed  by  the  supposed 
trustee,  and  sworn  to  by  him  in  open  court,  or  before 
any  justice  of  the  peace. 

If  any  person  so  summoned  shall  admit  that  he  has 
in  his  hands  any  goods,  eff'ects  or  credits  of  the  princi- 
pal, or  shall  wish  to  refer  that  question  to  the  court, 
upon  the  facts,  he  may,  instead  of  the  declaration  be- 
fore mentioned,  make  a  declaration,  setting  forth  such 
facts  as  he  shall  deem  material,  and  submit  himself 
thereupon  to  a  further  examination  on  oath. 


TRUSTEE    PROCESS.  61 

Consequence  where  trustee  does  not  appear  and  answer. 

—  When  any  person,  who  has  been  duly  summoned  as 
a  trustee,  shall  neglect  to  appear  and  answer  to  the 
suit,  he  shall  be  defaulted,  and  shall  be  thereupon  ad- 
judged a  trustee. 

Mode  of  trial  when  trustee  appears.  —  The  answers 
and  statements,  sworn  to  by  any  person  summoned  as 
a  trustee,  shall  be  considered  as  true,  in  deciding  how 
far  he  is  chargeable,  but  either  party  may  allege  and 
prove  any  other  facts,  not  stated  nor  denied  by  the  sup- 
posed trustee,  that  may  be  material  in  deciding  that 
question. 

An  assignee  of  a  claim  may  appear  to  maintain  his 
right,  voluntarily,  or  on  notice  by  order  of  court,  and 
may  be  admitted  as  a  party,  and  will  be  liable  to  pay 
costs  to  the  plaintiff,  or  entitled  to  receive  costs  from 
hrni,  at  the  discretion  of  the  court. 

Principal  defendant  may  be  a  witness,  Sfc. — The 
principal  defendant  may  he  used  as  a  witness  by  the 
attaching  creditor  or  the  adverse  claimants,  in  a  suit 
between  them. 

Trustee  having  in  his  hands  specific  goods  and  not 
money.  —  When  the  trustee  holds  in  his  hands  othet 
property  than  money,  he  shall  deliver  the  same  to  the 
officer,  or  as  much  thereof  as  shall  satisfy  the  execu- 
tion rendered  against  him. 

Contract  of  trustee  to  deliver  the  goods  at  a  certain 
time  and  place,  how  affected  by  the  trustee  process.  — 
A  person  under  contract  to  deliver  specific  goods  at 
any  certain  time  or  place,  being  summoned  as  a  trustee, 
shall  not  be  compelled  to  deliver  at  any  other  time  and 
place,  and  may  fulfil  his  contract  and  be  discharged, 
unless  he  shall  be  previously  adjudged  to  be  a  trustee. 

A  trustee  having  a  lien  on  goods,  by  pledge  or  mort- 
gage, may  enforce  his  claim,  unless  he  shall  have  been 
paid  or  tendered  the  amount  due  him  under  an  order 
of  court. 

Trustee  when  liable  for  the  non-delivery  of  such  goods. 

—  If  any  trustee  shall  refuse  or  neglect  to  deliver  any 
goods  in  his  hands,  when  lawfully  required  by  the  offi- 


8^  TRUSTEE    PROCESS. 

cer,  who  serves  the  execution,  he  shall  be  liable  to  the 
plaintiff  in  the  action  for  the  value  thereof,  after  de- 
dueling  the  amount,  if  any,  of  his  lien  thereon. 

Case  of  a  fraudulent  conveyance  to  trustee.  —  If  any 
person,  summoned  as  a  trustee,  have  in  his  possession 
any  property  of  the  principal  defendant,  which  he  holds 
by  a  conveyance  or  title,  that  is  void  as  to  the  creditors 
of  the  defendant,  he  may  be  adjudged  a  trustee,  on  ac- 
count of  such  property,  although  the  principal  defend- 
ant could  not  have  maintained  an  action  therefor  against 
him. 

Case  of  mutual  demands  between  principal  and  trus- 
tee.—  Every  trustee  shall  be  allowed  to  retain  or  de- 
duct out  of  the  property  in  his  hands,  all  his  demands 
against  the  principal,  of  which  he  could  have  availed 
himself,  if  he  had  not  been  summoned  as  a  trustee,  and 
he  shall  be  liable  for  the  balance  only. 

In  the  demands,  mentioned  in  the  preceding  section, 
to  be  adjusted  between  the  trustee  and  the  principal 
defendant,  there  shall  not  be  included,  on  either  side, 
any  claim  for  unliquidated  damages  for  wrongs  or  in- 
juries. 

Trustee  process  becomes  null  and  void  if  no  demand 
is  made  on  execution  within  thirty  days  after  final  judg- 
ment. 

Costs  and  expences  of  trustee.  —  If  any  person,  sum- 
moned as  a  trustee,  shall  appear  at  the  first  term,  and 
submit  himself  to  an  examination  upon  oath,  as  before 
provided,  he  shall  be  allowed  his  costs  for  travel  and 
attendance,  and  such  further  sum  as  the  court  shall 
think  reasonable,  for  his  counsel  fees  and  other  neces- 
sary expenses.  If  adjudged  a  trustee,  his  costs  and 
charges  shall  be  deducted  and  retained,  out  of  the 
goods  in  his  hands,  and  he  shall  be  chargeable  for  the 
balance  only,  to  be  paid  on  the  execution.  And  if 
the  property  in  his  hands  as  trustee,  shall  not  be 
of  sufficient  value  to  discharge  the  costs  taxed  in 
his  favor,  he  shall  have  judgment  and  execution 
against  the  plaintiff  for  the  balance  of  such  costs  so 
taxed,  deducting  the  sum  disclosed,  in  the  same  man- 
ner as  if  such  trustee  had  been  discharged  by  the  judg- 
ment of  the  court  in  such  action. 


TRUSTEE  PROCESS. — REPLEVIN.         53 

If  discharged  as  a  trustee,  his  said  costs  and  charges 
shall  be  paid  by  the  plaintiff,  and  the  trustee  shall  have 
judgment  and  execution  therefor  accordingly. 

Trustee  rohen  liable  to  pay  costs.  —  If  any  person, 
summoned  as  a  trustee,  and  who  dwells  in  the  county 
in  which  the  writ  is  returnable,  shall,  without  any  rea- 
son which  the  court  shall  deem  sufficient,  neglect  to 
appear  at  the  first  term  and  submit  himself  to  an  ex- 
amination as  before  provided,  he  shall  be  liable  for  all 
costs  for  the  plaintiff's  travel  and  attendance,  until  the 
trustee  shall  appear  as  aforesaid,  provided  the  plaintiff 
recovers  judgment  in  the  suit,  and  that  his  said  costs 
are    not   otherwise    recovered    and    received    by   him. 

Penally  for  perjury  on  examination  as  trustee.  —  If 
a  trustee  be  convicted  of  perjury,  besides  the  ordinary 
penalties,  he  shall  be  subjected  to  satisfy  the  whole 
judgment  against  his  principal. 


REPLEVIN. 

When  any  goods,  of  the  value  of  more  than  twenty 
dollars,  are  unlawfully  taken  or  detained,  from  the 
owner  or  other  person  entitled  to  the  possession,  or 
when  any  goods  of  that  value,  attached  on  mesne  pro- 
cess or  taken  in  execution,  are  claimed  by  any  person 
other  than  the  defendant  in  the  suit,  they  may  be  re- 
plevied by  the  person  claiming  them.  So,  the  mort- 
gagor of  personal  property,  or  any  person  claiming  un- 
der him,  who  is  entitled  to  redeem  it,  may  replevy 
the  property,  if  the  mortgagee,  upon  being  tendered 
the  sum  due  on  the  mortgage,  with  all  reasonable  and 
lawful  charges,  expenses,  &,c.,  shall  refuse  to  deliver 
up  the  same. 

The  officer,  before  serving  the  writ  of  replevin,  must 
take  from  the  plaintiff,  or  from  some  one  in  his  behalf, 
a  bond  to  the  defendant,  with  sufficient  sureties,  in 
double  the  value  of  goods  to  be  replevied,  with  con- 
dition to  prosecute  the  replevin  to  final  judgment,  and 
to  pay  such  damages  and  costs  as  the  defendant  shall' 
recover  against  him,  and  also  to  return  the  said  property,' 
in  case  such  shall  be  the  final  judgment. 

If  it  shall  appear,    upon  the  nonsuit  of  the  plaintiff, 

L.  T.  5* 


54  REPLEVIN. TENDER. 

or  upon  a  trial  or  otherwise,  that  the  defendant  is  enti- 
tled to  a  return  of  the  goods,  he  shall  have  judgment 
therefor  accordingly,  with  damages  for  the  taking 
thereof  by  the  replevin,  and  his  costs  of  suit. 


TENDEE. 

Gold  and  silver  are  the  only  legal  tender  in  this 
country ;  bank  notes,  however,  are  considered  a  good 
tender,  unless  objection  is  made  on  that  account, 

A  tender  may  be  made  on  any  contract  for  the  pay- 
ment of  money,  at  any  time  before  the  issuing  of  the 
writ;  and  it  will  be  a  good  defence  to  the  costs  of  suit 
and  damages,  and  interest  upon  the  debt  after  the 
tender  is  made ;  but  it  is  no  defence  to  the  debt. 
The  money  tendered  for  the  debt  should  be  brought  into 
court. 

A  tender  may  also  be  made,  after  an  action  is  brought 
on  such  contract,  of  the  whole  sum  due  thereon,  with 
the  legal  costs  oj"  suit  incurred  up  to  that  time,  provided 
it  be  made  four  days  at  least  before  the  return  day  of 
the  original  writ.  The  tender  may  be  made  to  the 
plaintiff  or  his  attorney,  and  if  not  accepted,  the  de- 
fendant may  plead  such  tender  at  the  trial,  bringing 
into  court  the  amount  so  tendered  for  the  debt  and 
costs.  If  the  tender  is  accepted,  the  plaintiff  or  his 
attorney  shall  give  to  the  defendant  a  certificate  or 
notice  thereof  to  the  officer  who  has  the  writ ;  and  if 
any  costs  are  incurred  by  the  officer  after  the  tender, 
and  before  he  has  notice  thereof,  the  defendant  must 
pay  it. 

The  debtor  must  tender  the  whole  amount  of  the 
debt,  and  all  interest  and  costs  that  may  have  accrued  up 
to  that  time,  as  a  tender  of  part  only  is  void,  because 
the  creditor  is  not  bound  to  accept  a  part.  But  it 
would  seem  that  a  tender  of  a  greater  amount  than 
what  is  due,  is  good,  if  it  can  be  changed,  so  as  to 
render  it  equivalent  to  the  debt ;  it  is  advisable,  how- 
ever, to  tender  the  exact  amount.  If  there  are  several 
distinct  sums,  he  may  tender  one  of  the  sums,  declaring 
that  the  tender  is  made  for  that  sum. 

In  making  a  tender,  the  money  should  be  produced, 


TENDER. SET-OFF.  55 

and  if  possible  laid  down  and  counted  in  the  presence 
of  the  creditor  ;  and  the  tender  must  be  to  pay  it  over 
immediately.  But  if  the  creditor  expressly  dispense 
with  its  production,  it  need  not  be  shown  ;  but  it  must 
clearly  appear  that  he  dispensed  with  its  production, 
and  to  avoid  running  any  risk,  it  is  always  advisable  to 
produce  it. 

The  tender  must  be  absolute  and  unconditional,  and 
in  one  case  it  was  held  invalid,  where  it  was  accompa- 
nied with  a  demand  of  a  discharge  of  the  party  making 
it.  (9  Mete.  42.) 


SET-OFF. 

When  there  are  mutual  debts  or  demands  between 
the  plaintiff  and  defendant  in  any  action,  one  demand 
may  be  set-off  against  the  other  in  certain  cases,  as 
follows ; 

The  demand  in  set-off  must  be  founded  upon  a 
judgment  or  contract,  express  or  implied,  and  for  a 
sum  liquidated,  or  that  may  be  ascertained  by  calcula- 
tion. A  claim  for  wrongs  and  injuries  done  cannot, 
therefore,  be  made  the  subject  of  set-off. 

The  demand  in  set-off  must  have  existed  at  the  com- 
mencement of  the  suit,  and  be  due  the  defendant  in 
his  own  right.  Thus,  an  administrator,  who  has  in  his 
hands  a  distributive  share  of  his  intestate's  estate, 
which  belongs  to  an  insolvent  debtor,  cannot  withhold 
it  from  the  debtor's  assignee  for  the  purpose  of  paying 
himself,  by  way  of  set-off,  a  debt  due  to  him  in  his  own 
right,  from  such  debtor.  (6  Mete.  537.)  If,  however, 
the  demand  was  assigned  to  the  defendant,  with  notice 
to  theplaintiff  of  the  assignment,  before  the  commence- 
ment of  the  action,  it  may  be  filed  in  set-off  by  the 
defendant. 

The  set-off  is  allowed  in  all  actions  founded  upon 
demands,  which  could  themselves  be  the  subject  of  a 
set-off. 

If  the  demand,  on  which  the  action  is  brought,  has 
been  assigned,  and  the  defendant  had  notice  of  the 
assignment,  he  cannot  set-off  any  demand  that  he  may 
acquire  against  the  original  creditor,  after  such  notice. 


6^  SET-OFF. 

If  there  are  several  plaintiffs  to  the  suit,  no  demand 
can  be  filed  in  set-off,  unless  it  be  due  from  all  of  them 
jointly.  So,  if  there  are  several  defendants,  the  demand 
to  be  filed  by  them  in  set-off,  must  be  due  to  all  of 
them  jointly. 

The  maker  of  a  note  payable  on  demand  may,  in  an 
action  on  the  note,  by  an  indorsee  against  him,  file  in 
set-off  any  demands  which  he  may  have  against  the 
payee,  and  which  he  could  have  filed  if  the  payee  had 
brought  the  action.  (9  Mete.  367  ;  Laws  1839,  c.  121.) 

In  an  action  by  the  endorsee  against  the  maker  of  a 
negotiable  note  endorsed  when  overdue,  the  maker  can 
avail  himself  of  any  payments  or  off-sets,  or  other  mat- 
ter of  defence,  which  existed  between  himself  and  the 
promisee,  at  the  time  of  the  actual  endorsement  and 
transfer  of  the  note  to  the  holder.  But  he  cannot  file 
in  off-set  any  claim  against  the  promisee,  that  he  may 
acquire  after  the  note  overdue  is  endorsed,  although 
he  had  no  notice  of  such  endorsement.  (5  Pick.  312  ; 
6  Mete.  7.) 

In  an  action  by  an  insurance  company  against  an 
individual,  the  defendant  cannot  file  in  set-off  a  claim 
for  damages  upon  a  policy  of  insurance,  for  an  alleged 
loss,  when  the  claim  is  denied  by  the  insurers,  and  the 
legality  of  such  claim  is  undecided,  and  the  amount  of 
damages  wholly  unliquidated.  (9  Mete.  42.) 

To  entitle  a  defendant  to  a  set-off,  he  must  file  a 
statement  of  his  demands  in  court  or  in  the  clerk's 
ofiice,  at  the  time  at  which  the  action  is  entered,  or 
within  such  further  time  as  the  court  shall  for  special 
reasons  allow,  and  must  give  written  notice  to  the 
plaintiff  or  his  attorney. 

Where  a  person  has  a  claim  against  a  party  suing 
him,  which  he  cannot  avail  himself  of  by  way  of  set-off, 
he  should  immediately  commence  suit  on  the  claim, 
and  with  the  permission  of  the  court  off-set  one  judg- 
ment against  the  other. 

Executions  between  the  same  parties  may  be  set-off, 
one  against  the  other,  in  the  following  manner  : — The 
debtor  can  deliver  his  execution  to  the  same  officer  who 
holds  the  other  execution,  and  he  shall  set-off  one 
against  the  other,  and  the  balance  due  on  the  larger 


SET-OFF. — UNLAWFUL  ATTACHMENT   AND   ARREST.    57 

execution  may  be  collected  in  the  same  manner  as  if 
there  had  been  no  set  off.  Such  set-off  cannot  be  made, 
unless  the  creditor  in  one  of  the  executions  is  in  the 
same  capacity  and  trust  as  the  debtor  in  the  other  ; 
nor  can  it  be  made  where  one  execution  has  been  law- 
fully assigned  before  the  creditor  in  the  other  execution 
becomes  entitled  to  the  sum  due  therein  ;  nor  where 
there  are  several  creditors  or  debtors  in  one  and  not  in 
the  other  ;  nor  shall  it  be  allowed  as  to  so  much  of  the 
first  execution,  as  may  be  due  to  the  attorney  in  that 
suit,  for  his  fees  and  disbursements. 


XTNLAWFUL  ATTACHMENT  AND  AEREST. 

An  officer  cannot  break  open  a  dwelling  house,  by 
forcing  the  outer  door  or  windows,  for  the  purpose  of 
making  an  attachment  of  the  owner's  goods ;  and  not 
only  is  such  breaking  an  unlawful  act,  but  the  attach- 
ment made  by  means  of  it,  is  unlawful  and  invalid. 
(12  Pick.  270.)  Neither  can  an  officer,  in  the  execu- 
tion of  a  civil  process,  force  the  outer  door  or  windows 
of  a  dwelling  house,  for  the  purpose  of  arresting  the 
occupant  or  any  of  his  family,  who  have  their  ordinary 
residence  there  :  and  not  only  the  children  and  the 
domestic  servants  of  the  occupant  are  entitled  to  this 
protection,  but  also  permanent  boarders,  or  those  who 
have  made  the  house  their  home.  But  where  a  stran- 
ger, whose  ordinary  residence  is  elsewhere,  upon  a 
pursuit,  takes  refuge  in  the  house  of  another,  the  house 
is  not  his  castle,  and  the  officer  may  break  open  the 
doors  or  windows,  in  order  to  execute  his  process  ;  so, 
if  one,  upon  an  escape  after  an  arrest,  flee  into  his  own 
house,  it  shall  not  protect  him.  (13  Mass.  523.) 

But  this  restriction  applies  only  to  dioelling  houses, 
and  an  officer  may  lawfully  break  open  the  door  of  any 
other  building  to  make  an  attachment  or  arrest  (16 
Pick.,  553)  ;  so,  where  he  has  gained  a  lawful  en- 
trance through  the  outer  door,  he  may  break  open  the 
doors  of  the  several  apartments  to  execute  civil  process. 

An  arrest,  upon  civil  process,  on  Sunday,  is  illegal. 
A  defendant,  however,  who  has  escaped,  may  be  re- 
taken on  Sunday. 


58   UNLAWFUL   ATTACHMENT,    U.C. — INSOLVENT    LAWS. 

In  delivering  possession  of  lands  recovered  in  a  real 
action,  the  officer  may  break  outer  doors,  and  use  force 
to  expel  the  occupier,  if  necessary.  (2  Dane's  Ab.,  65.) 


INSOLVENT    LAWS. 

(Laws  of  183S,  '41,  '44,  '48.) 

Who  may  petition  to  take  the  benefit  of  the  insolvent 
laws.  —  Any  debtor,  owing  not  less  than  two  hundred 
dollars,  may  by  petition  to  the  Commissioner  of  Insol- 
vency for  the  county  within  which  he  resides  or  in 
which  he  has  his  usual  place  of  business,  setting  forth 
his  inability  to  pay  all  his  debts,  and  his  willingness  to 
assign  all  his  estate  and  effects  for  the  benefit  of  his 
creditors,  take  the  benefit  of  the  insolvent  laws. 

In  what  cases  creditor  may  force  debtor  into  insolven- 
cy.— There  are  certain  cases  in  which  a  creditor  having 
a  demand  of  one  hundred  dollars,  provable  against  the 
debtor's  estate,  may,  at  any  time  within  ninety  days, 
and  not  after,  petition  the  commissioner  of  insolvency 
for  the  county  in  which  the  debtor  resides,  to  issue  a 
warrant  to  take  possession  of  the  debtor's  estate  for  the 
purpose  of  distributing  according  to  the  insolvent  laws. 

This  petition  must  set  forth,  either  : 

1st,  That  the  debtor  has  been  arrested  on  mesne 
process,  on  a  demand  of  one  hundred  dollars  or  up- 
wards, provable  against  his  estate,  and  that  he  did  not 
give  bail  according  to  law  before  the  return  day  of 
said  process :  or, 

2nd,  That  he  has  actually  been  in  prison  for  more 
than  thirty  days,  either  on  mesne  process,  or  execution 
issuing  upon  a  debt  of  one  hundred  dollars  or  upwards, 
provable  against  the  debtor's  estate  :  or, 

3d,  That  his  goods  or  estate  have  been  attached  on 
mesne  process  for  a  debt  of  one  hundred  dollars  or  up- 
wards, provable  against  the  debtor's  estate,  and  that  he 
did  not  give  bond  with  sufficient  sureties,  before  the 
end  of  the  term  at  which  such  process  was  returnable, 
to  pay  the  plaintiff  such  sum  as  he  might  recover  against 
him,    within  thirty  days  after  the  final  judgment. 

Effect  of  Petition.  —  If  the  facts  set  forth  in  the 


INSOLVENT    LAWS.  59 

petition,  whether  of  the  debtor  or  creditor,  appear  to 
the  commissioner  to  be  true,  he  shall  issue  a  warrant, 
returnable  at  any  time  not  less  than  ten  nor  more  than 
sixty  days  from  the  issuing  thereof,  to  a  messenger, 
(who  must  be  a  sheriff  or  deputy  sheriff  of  said  county,) 
ordering  him  to  take  possession  of  all  the  estate,  real 
and  personal,  of  such  debtor,  excepting  such  as  may  be 
by  law  exempted  from  attachment,  and  of  all  the  deeds, 
books  of  account,  and  papers  of  such  debtor,  and  to 
keep  the  same  safely  until  the  appointment  of  assignees. 

Debtor  must  furnish  Messenger  with  list  of  creditors 
within  three  days  after  the  date  of  the  warrant ;  and 
the  messenger,  in  addition  to  publishing  a  notice  of 
the  first  meeting  in  the  newspapers,  must  send  written 
notice,  to  the  creditors  named  on  the  schedule,  of  the 
time  and  place  of  the  first  meeting  of  the  creditors. 

First  meeting:  choice  of  assignees. —  At  tlie  first 
meeting  the  debtor  must  produce  a  full  schedule  of  his 
assets.  The  choice  of  an  assignee  or  assignees  is  also 
made  at  the  first  meeting,  by  the  greater  part  in  value 
of  the  creditors  according  to  the  debts  then  proved  : 
provided,  that  when  there  are  as  many  as  five  creditors 
and  less  than  ten,  two  votes  shall  be  required  to  elect 
the  assignee  ;  and  if  there  are  ten  or  more  creditors 
present,  three  votes.  If  no  choice  is  made,  the  com- 
missioner appoints  the  assignee. 

The  assignment,  and  the  duty  of  the  assignee  under 
it All  the  property  of  the  debtor  of  every  descrip- 
tion, excepting  such  as  is  by  law  exempted  from  at- 
tachment, including  all  debts  due  him,  and  all  liens, 
securities,  rights  of  action,  rights  of  redemption,  &c., 
pass  into  the  hands  of  the  assignee. 

It  is  the  duty  of  the  assignee  to  convert  the  debtor's 
estate  into  money,  and  collect  the  debts  as  soon  as  he 
reasonably  may,  and  after  deducting  the  fees  of  the 
commissioner,  messenger,  and  clerk,  and  his  own 
reasonable  compensation,  distribute  the  balance,  upon 
the  order  of  the  commissioner,  to  those  creditors  who 
have  proved  their  claims. 

What  debts  may  be  proved  against  insolvent's  estate. 
—  1st.  All  debts  due  and  payable  from  the  debtor,  at 


60  INSOLVENT   LAWS, 

the  date  of  the  first  publication  of  the  notice  of  issuing 
the  warrant. 

2nd.  All  debts  then  due,  though  not  then  payable, 
with  a  rebate  or  deduction  of  interest,  in  case  interest 
be  not  payable  until  the  debt  becomes  so. 

3rd.  All  moneys  due  on  any  bottomry  or  respond- 
entia bond  or  policy  of  insurance,  in  case  the  contin- 
gency or  loss  should  happen  before  payment  of  the 
first  dividend. 

4th.  If  any  debtor  has  made  or  endorsed  any  bill  or 
note,  or  if  any  person  has  paid  any  sum  for  him  as 
endorser  or  surety,  after  the  first  publication  of  the 
notice,  and  before  the  payment  of  the  first  dividend, 
such  debt  may  be  proved  precisely  as  if  due  and  pay- 
able previous  to  such  first  publication. 

5th.  All  demands  against  the  debtor  for  any  goods 
or  chattels  wrongfully  taken  or  withheld  by  him. 

Oath  administered  to  a  creditor  to  prove  a  claim  : — 

"  I,  A.  B.,  do  swear  that ,  of ,  by  (or  against,)  whom 

proceedings  in  insolvency  have  been  instituted,  at  and  before  the 
date  of  such  proceedings  was,  and  still  is,  justly  and  truly  in- 
debted to  me  in  the  sum  of ,  for  which  sum,  or  any  part 

thereof,  I  have  not,  nor  has  any  other  person  to  my  use,  to  my 
knowledge  or  belief,  received  any  security  or  satisfaction  what- 
ever, beyond  what  has  been  disposed  of  agreeably  to  law.  And 
I  do  further  swear,  that  the  said  claim  was  not  procured  by  me 
for  the  purpose  of  influencing  the  proceedings  in  this  case. 

Said  oath  may  be  administered  by  any  justice  of  the 
peace,  where  the  creditor  resides  more  than  five  miles 
from  the  place  of  meeting  of  the  creditors.* 

Provision  where  the  creditor  is  secured  by  mortgage, 
pledge,  or  lien.  —  Any  creditor  who  has  a  lien  or  mort- 
gage upon  the  property  of  the  debtor,  may  cause  the 
same  to  be  sold  under  the  direction  of  the  commis- 
sioner, and  the  proceeds  applied  to  his  debt,  so  far  as 
they  will  go ;  and  may  prove  the  balance  of  the  debt 
against  the  debtor's  estate  ;  or  he  may  give  up  the 
property  and  prove  his  whole  claim.  But  if  the  pro- 
perty be  neither  sold,  or  given  up  as  aforesaid,  then  the 
creditor  shall  not  be  allowed  to  prove  any  part  of  his  debt. 

*  The  creditor  may  enclose  the  above,  in  an  envelope^  to  the  Commis- 
sioner or  Assignee. 


INSOLVENT    LAWS.  61 

Second,  third,  and  other  meetings  of  the  creditors.  — 
The  second  meeting  is  called  by  the  assignee,  on  the 
order  of  the  commissioner,  and  must  be  within  three 
months  after  the  issuing  of  the  warrant ;  at  which  meet- 
ing debts  may  be  proved,  and  the  debtor  may  amend 
the  schedule  of  his  creditors,  and  correct  any  mistake 
therein.  This  schedule  is  then  sworn  to  by  the  debtor, 
and  he  also  swears  that  he  has  delivered  all  his  property 
of  every  description,  (except  such  as  is  exempt  from 
attachment,)  to  the  assignee;  and  that  if  any  property 
shall  thereafter  come  into  his  hands  which  ought  to  go 
to  the  benefit  of  his  creditors,  he  will  deliver  the  same 
to  the  assignee. 

The  third  meeting  must  be  within  six  months  from 
the  appointment  of  the  assignee,  at  which  meeting 
debts  may  be  proved ;  the  assignee  submits  his  accounts, 
and  a  dividend  of  the  balance  in  his  hands  is  ordered 
by  the  commissioner,  among  the  creditors  who  have 
proved  their  claims. 

If  any  funds  remain  in  Jhe  hands  of  the  assignee, 
then  a  fourth  meeting  is  to  be  called  within  eigiiteen 
months  after  his  appointment,  and  a  dividend  made, 
which  shall  be  final,  unless  there  are  some  outstanding 
debts,  which  could  not  be  collected  within  that  time. 
If,  after  the  payment  of  the  debts  proved,  any  surplus 
remains,  it  is  to  be  paid  to  the  debtor. 

Privileged  debts,  or  debts  to  he.  paid  in  full.  —  Debts 
due  to  the  United  States  and  the  Commonwealth  : 
debts  not  exceeding  twenty-five  dollars,  due  to  opera- 
tives for  labor  performed  in  the  service  of  the  insolvent, 
within  sixty-five  days  before  the  insolvency  :  and  the 
legal  costs  in  any  suit,  where  an  attachment  is  made, 
and  afterwards  dissolved  by  the  insolvency  of  the  debtor  : 
are  all  to  be  paid  in  full,  before  any  dividend  is  de- 
clared. 

Debtor  hoic  and  when  discharged,  what  may  prevent 
his  discharge,  or  render  a  discharge  void.  —  No  insol- 
vent debtor,  whose  assets  do  not  p<^yffti/  per  cent,  of 
the  claims  proved  against  his  estate,  shall  receive  a 
discharge,  unless  a  majority  in  number  and  value  of 
his  creditors,  who  have  proved  their  claims,  shall  assent 

L.  T.  6 


63  INSOLVENT    LAWS. 

thereto,  in  writing,  within  six  months  after  the  date  of 
the  assignment  ;  and  in  no  case  shall  a  certificate  of 
discharge  be  granted  until  the  third  meeting  of  the 
creditors  of  such  debtor,  nor  at  any  time,  except  at 
a  meeting  of  the  creditors;  and  such  discharge  shall 
be  null  and  void  if  the  debtor,  or  any  person  in  his 
behalf,  shall  have  procured  the  assent  of  any  creditor 
thereto,  by  any  pecuniary  consideration. 

No  discharge  of  a  debtor  shall  be  granted  or  valid, 
if  said  debtor  shall  be  a  second  time  insolvent,  and  the 
assets  of  his  estate  shall  fail  to  pay  fifty  per  cent,  of 
the  debts  and  claims  proved  against  him,  unless  three- 
fourths,  in  value,  of  the  creditors  whose  claims  are 
proved,  shall  assent  thereto  in  writing.  And  if  said 
debtor  shall  be  a  third  time  insolvent,  no  discharge 
shall  be  granted  liim. 

No  discharge  of  any  debtor  shall  be  granted,  or  valid, 
if  the  debtor,  when  insolvent,  shall,  within  one  year 
next  before  filing  of  the  petition,  by  or  against  him, 
pay  or  secure,  either  direct^  or  indirectly,  in  whole  or 
in  part,  any  borrowed  money  or  pre-existing  debt,  or 
any  liability  of  his  or  for  him,  if  the  creditor  proves 
that,  at  the  time  of  making  said  payment,  or  giving 
said  security,  the  debtor  had  reasonable  and  sufficient 
cause  to  believe  himself  insolvent 

No  certificate  of  discharge  shall  be  granted,  or,  if 
granted,  shiU  be  of  effect,  if  a  debtor,  within  six 
months  before  the  filing  of  the  petition,  by  or  against 
him,  procures  his  lands,  goods,  moneys  or  chattels  to 
be  attached,  sequestered,  or  seized  on  execution,  or, 
being  insolvent,  or  in  contemplation  of  insolvency, 
shall,  directly,  or  indirectly  make  any  assignment,  sale, 
transfer,  or  conveyance,  either  absolute  or  conditional, 
of  any  part  of  his  estate,  re;il  or  personnl,  intending  to 
give  a  preference  to  a  pre-existing  creditor,  or  to  any 
person  who  is  or  may  be  liable  as  indorser  or  surety 
for  such  debtor,  unless  said  debtor  shall  make  it  appear 
that,  at  the  time  of  making  such  preference,  he  had 
reasonable  cause  to  believe  liimselfsolvent ;  and  all  pre- 
ferences so  made,  are  void,  if  the  creditor  accepiing 
such  preference  had  reasonable  cause  to  believe  the 
debtor  insolvent. 


INSOLVENT   LAWS.  63 

Every  certificate  of  discharge  granted  to  a  debtor, 
shall  be  of  no  effect,  if  he  has  wilfully  sworn  falsely  as 
to  any  material  fact  in  the  course  of  the  proceedings, 
or  if  he  has  fraudulently  concealed  any  part  of  his 
estate  or  effects,  or  any  books  or  writings  relating  there- 
to ;  or  if  he  has  in  contemplation  of  becoming  insolvent, 
and  of  obtaining  a  discharge,  made  any  payment,  or 
any  assignment,  sale  or  transfer,  either  absolute  or 
conditional,  of  any  part  of  his  estate,  with  a  view  to 
give  a  preference  to  any  creditor,  or  to  any  person  who 
is  or  may  be  liable  as  an  indorser  or  surety  for  such 
debtor,  or  to  any  other  person  who  has  or  may  have 
any  claim  or  demand  against  him  :  provided,  that  this 
clause  shall  not  apply  to  any  security  given  for  the 
performance  of  any  contract,  when  the  agreement  for 
such  security  is  part  of  the  original  contract,  and  the 
security  is  given  at  the  time  of  making  such  contract. 
And  all  such  payments,  assignments,  sales  and  trans- 
fers, shall,  as  to  the  other  creditors  of  such  debtor,  be 
void ;  and  the  creditor  so  preferred,  if  he  shall  have 
accepted  such  payment  or  security,  knowing  that  the 
same  was  made  or  given  by  the  debtor  contrary  to  the 
provisions  of  this  section,  shall  not  be  allowed  to  prove 
the  debt  thus  preferred. 

Allowance  to  he  made  debtor  for  support  of  family. 
—  The  debtor  receives  one  dollar  a  day  from  the  as- 
signees, for  his  attendance  on  them  or  the  commis- 
sioner, when  his  attendance  is  required.  He  is  also 
allowed,  out  of  his  estate,  for  the  necessary  support  of 
himself  and  family,  such  sum,  not  exceeding  the  rate 
of  three  dollars  per  week,  for  each  member  of  his 
family,  and  for  such  time,  not  exceeding  two  months, 
as  the  commissioner  shall  order. 

Claim  for  necessaries  furnished  to  debtor,  not  barred 
by  his  discharge,  unless  such  claim  has  been  proved 
against  his  estate. 

[For  Fees  of  Comoiissioners  of  Insolvency,  see  Part  V.] 


64    IMPRISONMENT    FOR    DEBT. POOR    DEBTOr's    OATH. 

IMPEISONMENT  FOR  DEBT. -POOR  DEBTORS  OATH. 

(Laws,  R.  S.  c.  90,  97,  98  ;    1837,  '47,  '48.) 

When  debtor  may  be  arrested. — No  person  can  be 
arrested  and  imprisoned  for  any  debt  less  than  ten  dol- 
lars, exclusive  of  costs.  And  no  debtor  can  he  arrested 
on  mesne  process,  unless  the  creditor  make  affidavit 
that  the  debt  is  justly  due,  and  that  he  has  reasonable 
cause  to  believe  that  the  debtor  is  about  to  depart 
beyond  the  jurisdiction  of  the  court,  and  not  to  return 
until  after  judgment  is  rendered  in  the  suit. 

It  will  be  seen  that  this  statute  applies  only  to  cases 
o^  contract,  and  that  a  party  may  be  arrested  in  all  ac- 
tions for  wrongs  and  injuries,  without  any  affidavit. 

Females  exempt  from  arrest,  except,  Sfc.  —  No  fe- 
male can  be  arrested  for  any  debt,  except  on  a  judg- 
ment against  her  as  a  trustee,  for  the  sum  often  dol- 
lars or  more,  in  a  process  of  foreign  attachment. 

Debtor  imprisoned  how  to  be  supported,  if  a  pauper. 
• — When  a  debtor,  claiming  support  as  a  pauper,  is  con- 
fined in  close  prison  on  execution,  or  on  mesne  pro- 
cess, he  must  be  supported  at  the  expense  of  the  cred- 
itor, at  the  rate  of  8 1  25  per  week,  so  long  as  he  is 
kept  in  close  confinement  on  that  suit. 

If  the  creditor,  npon  being  requested  by  the  jailer, 
neglect  for  twenty-four  hours  to  give  security,  or  ad- 
vance the  money  for  his  board,  the  jailer  may  dis- 
charge the  debtor. 

The  debtor  may  be  discharged  whenever  all  the 
money  advanced  shall  have  been  expended. 

When  bail  are  liable  for  support  of  debtor,  and  hote 
long. — Where  a  pauper  debtor  is  surrendered  by  bail, 
and  committed  to  close  prison,  he  is  entitled  to  support 
at  the  expense  of  the  bail.  The  bail,  however,  by  giving 
notice  to  the  creditor  of  such  surrender,  may  be  released 
from  his  liability  after  seven  days.  The  body  of  a  debtor 
thus  discharged,  is  not  again  liable  on  the  same  debt. 

Bond  to  surrender  icithin  thirty  days. — Persons  in 
prison,  when  final  judgment  is  rendered,  may  be  dis- 
charged by  giving  bond  with  sureties  to  the  creditor,  in 


IMPEISONMENT  FOR  DEBT. — POOR  DEBTOR'S   OATH.    65 

double  the  amount  of  the  judgment,  to  be  approved  by 
two  justices,  conditioned  that  he  will  surrender  himself 
at  the  prison  within  thirty  days.  The  officer  who  has 
the  execution,  may  within  that  time  leave  said  execu- 
tion, or  a  copy,  with  the  jailer,  and  he  is  then  to  com- 
mit the  debtor  on  his  surrender.  Debtors  surrendered 
by  their  bail,  may  be  released  in  the  same  manner. 

Goods  and  estate  of  the  debtor  to  continue  liable  after 
his  discharge,  but  he  cannot  be  again  arrested.  —  "When 
a  debtor  is  discharged,  the  debt,  costs,  charges,  &,c., 
shall  remain  a  claim  against  him,  but  his  body  shall 
never  again  be  liable  to  arrest  or  imprisonment  on  the 
same  debt,  costs,  or  charges. 

A.  Debtor,  having  prison  limits,  cannot  claim  sup- 
port as  a  pauper. 

Bonds  for  the  liberty/  of  the  yard. — Any  person 
committed  on  execution  in  any  civil  action,  is  entitled 
to  the  prison  limits,  on  giving  bond  with  sufficient  su- 
reties, to  continue  a  true  prisoner  within  those  limits 
for  ninety  days,  and  then  surrender  himself  to  go  into 
close  confinement,  unless  previously  discharged  by  or- 
der of  creditor,  or  by  operation  of  law.*  No  one  is 
allowed  the  privilege  of  the  limits  at  any  time  after 
ninety  days  from  the  day  of  his  commitment. 

The  jail  limits  extend  to  the  boundaries  of  the  coun- 
ty within  which  the  action  is  brought. 

Poor  debtor's  oath.  —  Whenever  any  person  shall  be 
arrested  for  any  debt;  or  whenever  any  person  shall 
have  been  so  arrested,  and  have  given  bail,  or  been 
committed  to  jail ;  or  shall  have  been  committed  to  jail 
on  surrender,  in  court  or  otherwise,  by  his  bail  in  the 
suit,  he  may,  at  any  time  after  his  arrest  and  commit- 
ment, give  notice,  in  writing,  to  any  justice  of  the 
peace  in  the  county  where  the  arrest  was  made,  that 
he  is  desirous  to  take  the  benefit  of  the  laws  for  the 
relief  of  poor  debtors;  — or  he  may  make  the  same 
known  to  the  officer  making  the  arrest,  or  to  the  jailer, 
whose  duty  it  becomes  to  make  the  same  known  to 
some  justice  of  the  peace  for   the  county,  who  shall 

•  Should  the  ninety  days  expire,  and  the  above  requirements  not  have 
beeir  complied  with,  the  bail  will  be  liable  fordebt  and  co^ts. 

L.  T.  6* 


66   IMPBISOWMENT    FOR   ©EBT.—POOR   DEBTOR'S    OATH. 

issue  a  citation  to  the  creditor,  or  his  attorney,  to  ap- 
pear at  a  time  and  place  by  him  appointed,  and  exam- 
ine the  debtor,  if  he  sees  fit,  before  two  justices  of  the 
peace  and  of  the  quorum,  relative  to  his  property  and  his 
disposal  of  it.  The  citation  must  be  served  at  least 
twenty-four  hours  before  the  time  of.the  examination. 

A  Debtor  may  apply  to  the  court  to  have  oath  ad- 
ministered, provided  the  debt  amounts  to  ten  dollars 
or  upwards,  on  giving  notice  to  the  creditor  or  his  at- 
torney, seven  days  before  the  return  day  of  the  writ. 

Mode  of  examination — The  justices  shall  examine  the 
debtor  on  his  oath,  concerning  his  estate  and  effects 
and  the  disposal  thereof,  and  his  ability  to  pay  the 
debt,  for  which  he  is  committed,  and  they  shall  also 
hear  any  other  legal  and  pertinent  evidence,  that  may 
be  produced  by  the  debtor  or  the  creditor. 

The  creditor  may  propose  to  the  debtor  any  inter- 
rogatories, pertinent  to  the  inquiry,  and  they  shall,  if 
required  by  the  creditor,  be  proposed  and  answered  in 
writing,  and  the  answers  shall  be  signed  and  sworn  to 
by  the  debtor ;  and  the  creditor  may  have  a  copy  of 
the  interrogatories  and  answers,  certified  by  the  justi- 
ces, upon  paying  therefor  the  same  fees  as  for  a  depo- 
sition of  the  same  length. 

Oath  when  administered. —  If  the  examination  before 
the  justices  seem  to  them  to  warrant  it,  the  debtor  is 
allowed  to  take  and  subscribe  the  oath  that  he  has  not 
any  estate,  real  or  personal,  to  the  amount  of  twenty 
dollars,  except  the  goods  and  chattels  by  law  exempted 
from  attachment,  and  that  he  has  not  conveyed  or  con- 
cealed any  property  with  design  to  secure  the  same  to 
his  own  use,  or  to  defraud  his  creditors. 

If  justices  refuse  to  grant  his  discharge,  may  give 
new  notice,  Sfc.  —  If  the  justices  shall  not  be  satisfied 
that  he  is  entitled  to  his  discharge,  he  shall  be  re- 
manded to  the  prison  ;  but  this  shall  not  prevent  him 
from  obtaining  his  discharge  upon  new  notice  to  the 
creditor,  issued  not  less  than  seven  days  after  the  ser- 
vice of  the  former  one,  and  by  new  proceedings  before 
the  same  or  some  other  justices,  in  the  manner  before 
provided.  ,- 


IMPRISONMENT  FOR  DEBT. POOR  DEBTOR'S  OATH.  67 

Effect  of  the  Oath. — The  oath,  entitles  the  debtor 
to  a  certificate,  discharging  him  from  all  liability  to 
arrest  from  the  same  cause  of  action.  The  judgment, 
however,  remains  good  against  his  estate.  Swearing 
falsely  voids  the  discharge,  and  makes  him  "liable  to 
be  punished  for  perjury. 

Debtors  not  to  he  discharged,  if  after  commitment 
they  misuse  or  misspend  goods,  S^c.  —  If  any  debtor, 
after  being  committed  on  execution,  shall  misspend  or 
misuse  goods,  effects,  or  credits,  to  the  value  of  forty 
dollars,  which  are  not  exempted  from  being  taken  in 
execution,  but  which  cannot  be  attached  by  the  ordi- 
nary process  of  law,  —  or  so  much  thereof  as  is  equal 
to  the  sum  for  which  he  is  committed,  —  without  hav- 
ing offered  the  same  to  the  creditor  or  his  attorney,  in 
whole  or  part  payment  of  the  debt,  for  which  he  is 
committed,  he  shall  not  be  discharged. 

Penalty  on  any  person  aiding  debtor  in  misusing 
property,  Sfc.  —  If  any  person  shall  knowingly  assist 
the  debtor,  in  secreting,  spending,  or  using  any  such 
goods,  effects  or  credits,  to  the  value  of  forty  dollars, 
without  offering  the  same  to  the  creditor  or  his  attor- 
ney, as  provided  in  the  preceding  section,  he  shall 
pay  to  the  creditor  double  the  value  of  the  same. 

Charges  of  Jraud,  how  made  and  punished.  —  The 
creditor  may,  if  he  can,  substantiate  certain  specific 
charges  of  fraud  against  the  debtor,  any  one  of  which 
will  prevent  his  discharge  ;  and  subject  him  to  im- 
prisonment to  hard  labor,  for  a  term  not  exceeding 
one  year. 

The  charges  must  be  fully,  plainly  and  formally  set 
forth  in  writing,  signed  and  sworn  to  by  the  creditor, 
and  a  copy  duly  served  on  the  debtor  before  the  time 
of  returning  the  writ,  or  ten  days  before  an  examina- 
tion. The  only  fraudulent  acts  which  a  creditor  can 
charge,  are  : — 

First,  That  since  the  debt  was  contracted,  or  the 
cause  of  action  accrued,  the  debtor  has  fraudulently 
conveyed,  or  concealed,  or  otherwise  disposed  of,  his 
estate  or  some  part  thereof,  with  design  to  secure  the 
same  to  his  own  use,  or  to  defraud  his  creditors :  or 


68         PRINCIPAL,  FACTOR  AND  AGENT. 

Secondly,  That  since  the  debt  was  contracted,  or  the 
cause  of  action  accrued,  he  has  hazarded  and  paid 
money  or  other  property,  to  the  value  of  one  hundred 
dollars  or  more,  in  some  kind  of  gaming  prohibited  by 
the  statutes  of  the  Commonwealth  :  or 

Thirdly,  That  he  lias  wilfully  expended  his  goods  and 
estate,  or  some  part  thereof,  for  the  purpose  of  enabling 
himself  to  swear  that  he  has  not  any  estate  to  the 
amount  of  twenty  dollars,  except  such  as  is  exempted 
from  being  taken  in  execution  :  or 

Fourthly,  If  the  action  was  founded  on  contract,  that 
the  debtor  contracted  the  debt,  wilh  an  intention  not 
to  pay  the  same  : 

And  the  creditor  shall  not,  upon  such  a  trial,  give 
evidence  of  any  charges  of  fraud,  that  shall  not  be 
contained  in  his  statement,  made  and  filed  as  before 
provided,  nor  of  any  supposed  fraudulent  acts  of  the 
debtor,  committed  more  than  three  years  before  the 
commencement  of  the  creditor's  original   action. 

Fees  for  services  in  administering  oath  to  be  paid 
by  debtor.     [See  title  Fees,  Part  F.] 


PART    III. 


GENERAL  &  SPECIAL  LAWS. 


PRINCIPAL,  FACTOR  AND  AGENT. 

Factor,  a  commercial  agent  residiiigr  at  a  distance  from  his  principal, 
and  having  tlie  superintendence  of  some  bnuich  of  his  employer's  trade  in 
the  place  where  he  acts.  A  factor  diflers  from  an  ordinary  agent  in  this, 
that  he  does  not  represent  his  principal,  bul  acts  as  a  principal  himself  in 
his  transactions  wilh  third  parlies.  He  is  distinguished  from  a  broker,  in 
as  far  as  he  has  the  personal  possession  and  management  of  ihe  goods  over 
which  his  superintendence  extends.  The  factor  carries  on  his  commercial 
operations  on  commission.  He  receives  consignmenis  from  his  pruicipal, 
and  makes  sales  and  remittances  in  return,  balancing  accounts  from  time 
to  time.  He  may  act  without  disclosing  the  name  of  his  principal.  He 
frequently  holds  a  Del  Credere*  Commission.  The  factor  is  personally 
responsible  for  whatever  he  may  do  exceeding  the  powers  delegated  to  him, 

•  This  is  a  premium,  or  commission,  charged  by  merchants  for  becoming 
responsible  for  the  buyers  of  goods  or  underwriters  ;  so  that  in  case  of  the 
failure  of  the  latter,  the  owners  are  secured  against  loss.  la  otiier  worda 
for  a  Del  Credere  commission,  he  insures JJtt  debu. 


PRINCIPAL,    FACTOR   ANB   AGENT.  69 

and  where  they  are  not  expressed  in  the  terms  of  his  commission,  his 
powers  will  he  limited  by  the  custom  of  the  trade.  He  is  not  resp'>iisible 
''  at  all  events"  (a<  it  is  termed)  for  the  safety  of  goods  within  his  charjte, 
that  is  to  say,  he  is  not  liable  for  them  as  if  he  had  insured  them  against  all 
risks  ;  but  he  ought  to  bestow  on  them  the  same  care  as  on  his  own  pro- 
perty, and  It  woiih)  appear  that  he  will  be  amenable  to  his  employei  if  he  do 
not.  He  is  not  in  the  general  case  responsible  for  the  consequences  of  fire, 
robbery,  or  other  accident,  but  there  are  precautions  which,  in  certain  cir- 
cumstances, he  must  adopt.  One  of  the  most  important  is  that  of  protect- 
ing Am  principal's  iiiterent  by  insurance,  and  if  he  have  effects  in  hand,  lie  is  in 
all  cases  bound  to  comply  with  directions  to  insure,  being-,  on  failure,  him- 
self considered  responsible.  Where  goods  are  consigned  to  a  factor,  his 
title  to  them,  and  right  to  dispose  of  them,  is  g'-nerally  conveyed  in  an  in- 
dorsed bill  oflading,  but  in  questions  with  parties  privy  to  the  transaction, 
it  is  held  that  a  letter  of  advice  is  sufficient.  Where  the  factor  has  absolute 
power  to  sell,  indorsement  of  a  bill  of  lading  while  the  goods  are  at  sea  will 
pass  them  absolutely,  and  bar  the  principal's  right  to  stop  in  transitu,  "  and 
in  the  absence  of  fraud,  it  seems  that  the  assignee's  knowledge  of  the  fac- 
tor's character  would  not  affect  his  title  ;  for,  in  order  to  make  notice  mate- 
rial, it  must  be  notice  of  something  inconsistent  with  the  right  ofthe  assigiier 
to  do  the  act  under  which  the  assignee  claims,  or  of  such  circumstances  as 
render  the  bill  oflading  not  fairly  and  honestly  assignable.  But,  inasmuch 
as  the  character  of  a  factor  is  consistent  with  the  power  to  sell,  the  know- 
ledge of  this  circumstance  would  not  probably  he  considered  as  any  im- 
peachment ofthe  transaction  if  it  would  be  otherwise  valid."  A  factor  has 
a  lien  on  the  goods  consigned  to  him,  not  only  for  charges  affecting  those 
goods,  but  for  hii*  general  balance.  The  lien  extends  to  every  portion  of 
the  goods,  and  when  they  are  disposed  of,  to  the  proceeds.  On  pariing 
with  possession,  the  factor  abandons  the  lien,  and  goods  transmitted  to  liim 
with  a  s-pecific  appropriation  are  excepted  from  it. 

A  factor  is  liable  for  a  loss  arising  from  his  neglect  to  keep  his  principal 
informed  of  matters  material  to  his  interest.  (6  W.  &  S.  264.) 
.  A  factor  is  bound  to  remit  to  his  principal  the  moneys  received  from 
sales  of  a  consignment,  unless  there  be  an  agreement  or  custom  of  trade, 
and  if  the  latter  be  himself  the  factor  of  a  principal  abroad,  he  is  bound  to 
call  on  his  factor  in  this  country  to  transmit  moneys  when  he  is  informed  of 
it  ;  and  if  the  money  is  lost  by  neglect  to  do  so,  he  is  accountable,  (ib.) 

A  factor  sold  goods  to  J.  F.  on  six  months,  taking  a  note  payable  to  him- 
self, including  in  it  a  debt  owing  to  himself,  and  afterwards  released  J.  F. 
and  came  in  under  his  assignment.  Held,  that  he  thereby  made  the  debt 
bis  own,  he  having  released  J.  F.  without  authority,  (ib.)] 


Law   of  Factors    and   Agents,    Enacted   by  the 

legislatufie  of  massachusetts,   and  approved 

BY  THE  Governor  May  2,   1849. 

Sec.  1.  Whenever  any  person,  entrusted  with  mer- 
chnndize,  and  having  authority  to  sell,  or  consign  the 
same,  or  otherwise  transmit,  or  deliver  the  same  to  any- 
other  person,  such  person  shall  have  a  lien  thereon, — 

1st.  For  any  money  or  merchandise  advanced,  or 
negotiable  security  given  by  him,  on  the  faith  of  such 
consignment,  to  or  for  the  use  ofthe  person,  in  whose 
name  such  consignment  or  delivery  was  made: — 

2d.  For  any  money,  or  negotiable  security,  or  mer- 
chandise, received  for  the  use  of  such  consignee,  by  the 
person  in  whose  name  such  consignment  or  delivery 
was  made, 


70  PRINCIPAL,    FACTOR   AND   AGENT. 

Sec.  2.  Such  lien  shall  not  exist  for  any  of  the 
purposes  aforesaid,  if  such  consignee  shall  not  have 
probable  cause  to  believe,  at  the  time  of  such  advance 
or  receipt,  that  the  person,  in  whose  name  such  mer- 
chandise was  shipped,  transmitted,  or  delivered,  was 
the  actual  owner  thereof,  or  had  a  legal  interest  in 
said  property,  equal  to  the  amount  of  said  lien. 

Sec.  3.  Whenever  any  consignee  or  factor,  having 
possession  of  merchandise,  with  authority  to  sell  the 
same,  or  having  possession  of  any  bill  of  lading,  permit, 
certificate,  or  order,  for  the  delivery  of  merchandise, 
with  the  like  authority,  shall  deposit  or  pledge  such 
merchandise,  or  any  part  thereof,  or  such  document, 
with  any  other  person,  as  a  security  for  any  money  or 
merchandise  advanced,  or  negotiable  instrument  given 
by  him,  in  good  faith,  upon  the  credit  thereof,  such 
other  person  shall  acquire,  by  virtue  of  such  contract, 
the  same  interest  in,  and  authority  over,  the  said  mer- 
chandise and  documents,  as  he  would  have  acquired 
thereby,  if  such  consignee  or  factor  had  been  the  actual 
owner  thereof;  notwithstanding  the  person,  making 
such  advances  upon  the  faith  of  such  deposit  or  pledge, 
may  have  had  notice  that  the  person  with  whom  he 
made  such  a  contract,  was  only  an  agent :  Provided, 
hotcever,  that  this  act  shall  give  validity  only  to  such 
contracts;  and  shall  protect  only  such  loans,  advances 
and  exchanges,  as  shall  be  made  in  good  faith,  and 
with  probable  cause  to  believe,  that  the  agent  making 
such  contracts  had  authority  so  to  do,  and  was  not 
acting  fraudulently  therein,  against  the  owner  of  such 
merchandise. 

Sec  4.  If  any  person  shall  accept  such  merchandise 
or  document,  from  any  such  consignee  or  factor,  in 
deposit  or  pledge  for  any  antecedent  debt,  due  from 
such  consignee  or  factor,  such  person  shall  thereby 
acquire  no  other  or  further  right  or  interest  in,  or 
authority  over,  or  lien  upon,  such  merchandise  or 
documents,  than  such  consignee  or  factor  might  him- 
self have  enforced  against  the  actual  owner  of  the  same. 

Sec  5.  Nothing  in  this  act  contained  shall  be  con- 
strued or  taken, — 


PRINCIPAL,    FACTOR    AND    AGENT.  71 

1st.  To  affect  the  lien  of  any  consignee  or  factor,  at 
law,   for  the  expenses  and  charges  attending  the  ship- 
'  ment,    transportation,    and   care  of  any   merchandise 
entrusted  to  him  : — 

2d.  Nor  to  prevent  the  actual  owner  from  recover- 
ing such  merchandise  from  such  consignee  or  factor, 
previous  to  the  pledge  thereof,  as  aforesaid,  or  from  his 
assignees,  in  case  of  his  insolvency  : — 

3d.  Nor  to  prevent  such  owner  from  recovering  any 
merchandise  or  document,  so  as  aforesaid  deposited  or 
pledged,  upon  tender  of  the  money,  and  restoration  of 
the  negotiable  security,  or  property  so  advanced  to  such 
consignee  or  factor  ;  and,  upon  tender  of  such  further 
sum  of  money,  and  restoration  of  such  negotiable  in- 
strument or  property  as  may  have  been  advanced  or 
given  by  such  consignee  or  factor,  to  such  owner;  or 
upon  tender  of  a  sum  of  money  equal  to  the  amount  or 
value  thereof: — 

4th.  Nor  to  prevent  such  owner  from  recovering, 
from  the  person  with  whom  such  merchandise  may 
have  been  so  deposited  or  pledged,  any  balance  of 
money  remaining  in  his  hands  as  the  proceeds  of  the 
sales  thereof,  after  deducting  the  amount  of  the  moneys 
so  advanced  thereon,  on  the  amount  of  the  negotiable 
security  so  given  as  an  advancement  as  aforesaid. 

Sec.  6.  If  any  consignee  or  factor  shall  deposit  or 
pledge  any  merchandise,  or  document,  as  aforesaid, 
consigned  or  entrusted  to  him,  as  a  security  for  any 
money  borrowed,  or  negotiable  instrument  received  by 
him,  and  shall  dispose  of  or  apply  the  same  to  his  own 
use,  in  violation  of  good  faith,  and  with  intent  to  de- 
fraud the  owner  of  such  merchandise  ;  or  if  any  con- 
signee or  factor  shall,  with  the  like  fraudulent  intent, 
apply  or  dispose  of,  to  his  own  use,  any  money  or  ne- 
goti  ible  instrument,  raised  or  acquired  by  the  sale  or 
other  disposition  of  such  merchandise,  such  consignee 
or  factor  shall,  in  every  such  case,  be  deemed  and  ad- 
judcred  guilty  of  a  misdemeanor,  and  shall  be  punished 
therefor,  by  a  fine  not  exceeding  five  thousand  dollars, 
and  by  imprisonment  for  a  term  not  exceeding  five 
years. 


n 


PARTNERSHIPS. 


GENEEAL  PAETNEKSHIP. 


To  constitute  a  pariiiership,  and  to  make  a  person  liable  as  a  partner, 
there  must  he  an  agreement  between  him  and  his  colleagues  to  share  in  all 
risk  of  profit  and  loss  ;  or  he  must  have  permitted  them  to  use  his  credit, 
and  lo  hold  him  out  as  jointly  liable  with  themselves.  In  general  all  the 
partners  appear  ostensibly  to  the  world,  constituting  what  is  called  ihe 
hotue  ox  Jinn. 

A  number  of  persons  agreeing  to  subscribe  sums  of  money  for  the  pur- 
pose of  obtaining  a  bill  in  the  legislature  to  make  a  canal  or  railway  are 
partners  in  ihe  undertaking  ;  and.  therefore,  a  subscriber  who  acied  as  their 
surveyor  could  iioi  mainiain  an  aciioii  for  work  done  by  him  in  that  charac- 
ter, on  account  of  the  partnership,  against  all  or  any  of  the  other  subscribers. 

If  there  is  no  express  stipulation  as  to  the  niaiiagement  of  parinership 
properly,  the  majority  must  decide  as  lo  the  disposition  and  management  of 
partnership  concerns. 

Each  partner  is  not  only  entitled  to  his  proportion  of  the  partnership 
estate,  according  to  express  agreement,  or  what  he  originally  contributed, 
but  he  has  a  lien  upon  it  for  any  sum  of  money  advanced  by  him  to,  or 
owing  to  him  from,  ihe  partnership. 

Liability  of  I'art.ners  — In  general,  it  may  be  stated,  that  the  acts  of 
one  panne r  in  the  way  ot  sale,  purchase,  promise,  or  a?rcen',ent.  when  per- 
formed without  collusion,  and  in  violaiion  of  no  public  law,  and  in  course 
of  the  partnership  business,  are  binding  on  the  whole  firm.  And  this  res- 
ponsibility of  partners,  for  the  acts  of  each  oiher  in  the  course  of  trade, 
cannot  be  limited  by  any  agreement,  covenant  or  promise,  in  the  articles  by 
•which  the  partnership  is  consiiiuied. 

This  principle  is,  however,  subject  to  some  qualification.  If  one  partner 
can  show  a  d'.«riui»««-,  he  will  be  relieved  from  responsibility.  Or,  if  there 
be  any  particular  speculation  which  he  disapproves  of,  by  giving  distinct 
notice  to  those  wiih  whom  his  partners  are  al)out  to  coniraci,  thai  he  will 
not,  in  any  manner,  be  concerneil  in  it,  ihey  cannot  have  any  claim  upon 
him,  as  proof  of  the  notice  would  lehut  his  prima.tarie  liability.  IVeither  is 
there  any  joint  liability  for  the  debt  of  nuf.  partner,  unless  contracted  in  the 
course  of  the  partnership  concern.  So,  if  the  purtnership  eflects  are  taken, 
and  sold  on  an  execution  against  one  partner  only,  ihe  sheriff  is  to  pay 
over  to  the  other  partners  a  share  of  the  produce  proportioned  lo  their 
shares  in  the  partnership  eftects. 

Though  a  small  share  in  the  business  renders  the  shareholder  a  general 
partner,  and  subjects  him  to  ihe  same  responsibility  as  it"  he  held  a  more 
coiisiilerable  share,  yet  a  share  in  a  ship,  the  copyright  of  a  book,  or  other 
specific  object,  does  not  constitute  a  general  partnership:  and,  therefore, 
the  responsibilily  is  limited  lo  that  ptirticular  object. 

The  acis  of  one  pa  tner,  in  drawing  bills  of  exchange,  endorsing  such  as 
are  payable  to  the  firm,  and  making  and  endorsing  promissory  noies,  when 
they  concern  the  joint  trade,  bind  the  firm.  But  it  is  otherwise  if  they  con- 
cern the  acc-eplor  only  in  a  disjoint  interest. 

A  partner,  a«  such,  cannot  bind  his  co-partner  by  deed  without  express 
or  implied  nuihoriiy. 

One  partner  may  maintain  an  action  for  money  received  against  the 
other  partner,  for  money  received  to  the  separate  use  of  the  former,  and 
wrongfully  carried  to  the  pariiiership  account. 

One  partner  canno;  sell,  or  mortgaje  his  undivided  interest  in  a  specific 
part  of  the  property  belonsing  to  the  partners.  (U  N.  H.  404.) 

Stage  companies  are  liable  as  partners. 

When  money  is  lent  to  part  of  the  members  of  a  firm,  who  give  a  note 
for  it  in  their  own  names  only,  the  lender  is  not  a  creditor  of  the  firm,  al- 
though the  borrowers  apply  the  money  towards  payment  of  debts  of  the 
firm.  (8  Met.  411.) 

Dissolution  of  Partxership. — By  the  death  of  one  partner  the  part- 
nership is  dissolved  unless  there  is  an  express  agreement  for  llie  iran«inis- 
siiUi  of  un  interest  in  ihe  business  to  the  dei'eased  partner's  family,  or  for  the 
continuation  of  i'  by  his  exi'cuior  or  adininistraior  ;  or  by  will  the  coniinu- 
ance  is  provided  for;  ami  in  making  this  provision,  the  whole  estate,  or 
all  that  poriion  of  ii  already  embarked,  may  be  b(.und. 

Where  ihe  partnership  is  s^'C'a^  or  formed  for  a  single  dealing  or  Irans- 
aciion,  as  soon  as  that  is  completed  the  partnership  is  at  an  end  of  course 


LIMITED   PARTNERSHIPS.  73 

But  where  a  general  partnership  is  entered  into,  for  an  unlimited  time,  il 
may  be  put  an  end  to  at  any  lime  by  eiiher  of  the  parlies,  so  that  he  does 
not  break  off  wiih  some  sinister  view. 

A  partnership  may  be  dissolved  by  the  expiration  of  the  time  for  whicU 
it  ^vas  constituted,  by  award  of  arbitrators,  by  the  insanity  of  one  of  the 
firm,  or  by  the  gross  misconduct  of  a  partner,  which  will  induce  a  court  of 
equity  to  annul  the  contract. 

An  advenisement  in  the  newspapers  is  not  sufficient  announcement  of 
the  dissolution  of  partnership :  notice  ought  to  be  sent  to  all  persons  with 
whom  the  firm  had  dealings  while  in  partnership. 

If  a  partner,  when  he  retires,  draw  out  of  the  partnership  stock  all  that  he 
had  paid  in,  the  house  being  insolvent  at  the  time,  he  will  be  obliged  to  re- 
fund to  the  creditors  of  the  other  partner.* 


LIMITED    PARTNERSHIPS. 

(Laws,  R.  S.  c.  34.) 

Limited  partner sJii-ps  may  be  formed  for  the  trans- 
action of  mercantile,  mechanical  and  manufacturing 
business,  but  not  for  banking  or  insurance. 

General  and  special  partners. — Such  associations 
may  consist  of  one  or  more  persons,  jointly  and  severally 
responsible  a.s  general  partners  under  the  common  law 
of  partnership,  and  of  one  or  more  persons  contributing 
a  specified  amount  of  capital  in  cash,  but  whose  per- 
sonal liability  is  limited  to  the  cases  hereinafter  men- 
tioned, and  who  are  called  special  partners. 

Certificate. — The  partners  must  severally  sign  a  true 
certificate,  embracing  all  the  particulars  contained  in 
the  following  form,  viz.  : — 

In  conformity  with  the  provisions  of  the  34th  chapter  of  tlie 

Revised  Statutes,  we,  A.  B.,  of ,  and  C.  D.,  of ,  do 

hereby  certify  that,  pursuant  to  said  provisions,  we  have  this  day 
formed  a  limited   partnership,   for  the   purpose  of  carrying  on 

business  in  the  city  ofJioston,  under  the  name  ami  firm  of 

;  that  said is  a  general  partner,  and  said is  a  spe- 
cial partner,  and  has  contributed   the  sum  of  toward  the 

common  stock  of  said  copartnership.     Said  partnership  is  to  con- 
tinue   years  from  and  after  the  day  of  the  date  hereof,   and 

is  to  terminate  on  the day  of in  the  year . 

In  witness  whereof,  we,  the  said ,  have  severally  set  our 

hands  and  seals  this day  of ,  in  the  year . 

A.  B.     (l.  s.) 
C.  D.     (i,.  s.) 

The  certificate  must  be  acknowledged  before  a  jus- 
tice of  the  peace,  recorded  in  the  registry  of  deeds 
where  the  partners  have  their  principal  place  of  busi- 
ness, and  a  copy  thereof  certified  by  the  register,  must 
be  filed   and   recorded   in   the   registries   of  all  other 

*  See  Forms  of  Partnership  in  "  Business  Man's  Assistant." 
L.  T.  7 


74  LIMITED   PAETNEESHIPS. 

counties  where  they  have  a  place  of  business,  and  must 
also  be  immediately  published  six  weeks  successively 
in  a  newspaper  printed  in  the  town  where  they  have 
their  principal  place  of  business,  or  if  no  paper  be  there 
published,  then  in  some  one  printed  in  Boston. 

The  business  must  be  conducted  by  the  general  part' 
nets  only,  in  their  own  names;  but  if  there  be  more 
than  three,  all  the  names  are  not  required  to  appear  in 
the  style  of  the  firm.  The  special  partners  must  not 
permit  their  names  to  be  used,  nor  make  any  contracts 
for  the  partnership.  Legal  proceedings  must  also  be  in 
the  name  of  the  general  partners. 

The  capital  stock  must  not  be  reduced,  by  with- 
drawal or  division  of  interest  or  profits,  below  the 
amount  stated  in  certificate ;  and  if  at  any  time  the 
assets  of  the  partnership  are  insufficient  to  pay  the 
debts,  the  special  partners  will,  as  individuals,  be  held 
responsible  to  the  amount  of  all  the  profits  they  may  have 
received,  with  interest  thereon,  from  the  time  they 
were  withdrawn. 

In  case  of  insolvency ,  no  general  assignment  will  be 
valid  unless  it  be  for  the  general  benefit  of  all  creditors, 
without  preference,  except  for  debts  due  to  the  United 
States  on  bonds  for  duties,  nor  unless  a  notice  thereof 
be  published  in  tiome  newspaper  printed  in  the  county 
where  the  place  of  business  of  the  party  making  it  is 
situated,  if  there  is  such  a  paper,  or  otherwise  in  some 
paper  printed  in  Boston,  within  fourteen  days  after 
making  such  assignment;  provided,  that  if  the  place  of 
business  be  in  Dukes  County  or  Nantucket,  if  no 
paper  is  printed  in  the  county,  the  notice  may  be  pub- 
lished in  a  Boston  paper  at  any  time  within  sixty  days 
after  making  the  assignment.  The  assent  of  creditors 
to  such  an  assignment  may  be  presumed  unless  they 
make  known  their  dissent  within  sixty  days  after  notice 
thereof 

Dissolution,  S^^c. — A  limited  partnership  may  be 
dissolved  by  a  notice  thereof  recorded  and  published,  in 
the  same  manner  as  the  original  certificate,  and  may  in 
like  manner  be  renewed  or  continued  beyond  the  orig- 
inal term  by  recording  and  publishing  a  new  certificate. 

In  all   cases  in   which  special  partners  are  not  ex- 


MORTGAGED  REAL    ESTATE.  75 

empted  from  liability  by  a  compliance  with  the  condi- 
tions of  the  law  of  limited  partnerships,  they  become 
general  partners. 

The  Supreme  Court  has  jurisdiction  in  equity  of  all 
cases  under  the  law  relating  to  limited  partnerships. 

M0BTGA6ED   BEAL   ESTATE. 

(Laws,  R.  S.  c.  107.) 

Conveyance  of  real  estate  by  mortgage. — Every  con- 
tract for  securing  a  debt  by  a  conveyance  of  lands  and 
tenements,  is  deemed  a  mortgage  as  between  the  par- 
ties; and  the  borrower  will  be  entitled  to  redeem  his 
property  within  three  years,  although  the  conveyance 
is,  on  the  face  of  it,  absolute.  In  order,  however,  to 
protect  both  mortgagor  and  mortgagee  against  subse- 
quent purchasers  and  mortgagees,  it  is  necessary,  that 
the  fact  that  the  conveyance  is  intended  as  a  mortgage, 
be  recorded  with  the  deed  of  conveyance.  All  persons 
who  have  an  estate  in  lands  or  tenements,  may  mort- 
gage the  same  to  the  extent  of  their  interest,  if  they  are 
not  under  any  legal  disability.  A  mortgage  on  real 
property  must  be  recorded  in  the  office  of  the  register 
of  deeds  in  the  county  where  the  estate  lies;  and  must 
be  discharged  by  an  entry  on  the  margin  of  the  record, 
signed  by  the  mortgagee,  his  executors  or  assigns, 
acknowledging  the  satisfaction  of  the  mortgage. 

Foreclosure  of  the  mortgage. — The  mortgage  may 
be  foreclosed  for  breach  of  condition,  and  the  mort- 
cracree  obtain  possession  of  the  premises  by  action,  or 
he  may  make  an  open  and  peaceable  entry^'ftut  a 
memorandum  or  certificate  thereof  must  be  made  on 
the  mortgage  deed,  and  signed  by  the  mortgagor,  and 
be  recorded  within  thirty  days  ;  or  else,  the  certificate 
of  two  witnesses,  to  prove  the  entry,  must  be  made  and 
sworn  to  before  a  justice  of  the  peace,  and  recorded  as 
aforesaid.  Unless  the  contrary  is  stipulated  in  the 
mortgage,  the  mortgagee  may  take  possession  as  well 
before  as  after  breach  of  the  condition;  but,  in  such 
case,  if  the  debt  is  afterwards  paid,  or  the  mortgao-e 
redeemed,  the  clear  rents  and  profits  must  be  deducted 
from  the  sum  due  on  the  mortgage.  But  where  pos- 
session is  taken  before  a  breach  of  condition,  the  three 
years  limited   for   redemption   shall  not   begin  to  run 


T6  MORTGAGED   PERSONAL   PROPERTY. 

until  after  the  condition  is  broken,  nor  until  written 
notice  is  given  to  the  mortgagor,  or  action  commenced, 
and  such  notice  or  certificate  must  be  recorded.  The 
mortgagor  may  redeem  the  estate  at  any  lime  within 
three  years,  by  tendering  the  sum  then  due,  and  costs, 
if  there  be  any;  and  such  tender  may  be  made  before 
or  after  breach  of  condition.  If  the  mortgagee  has  had 
possession,  he  must  account  for  the  rents  and  profits, 
and  will  be  allowed  for  reasonable  repairs,  taxes,  dtc. 
Such  tender,  if  not  accepted,  shall  not  prevent  the  fore- 
closure of  the  right  of  redemption,  unless  a  suit  for  re- 
demption be  commenced  within  one  year  after  tender 
is  made. 

Power  to  sell. — A  mortgage  may  contain  a  power  to 
sell,  which  destroys  the  right  to  redeem  in  the  mort- 
gagor, and  all  claiming  under  him,  without  the  aid  of 
any  court.  Such  sale  will  not  however  prejudice  a 
mortgage  made  prior  to  the  sale.  The  sale  is  made  at 
public  auction,  after  the  premises  have  been  advertised 
in  the  public  papers  or  otherwise.  The  mortgagee, 
out  of  the  money  of  the  sale,  retains  his  debt,  interest, 
costs  and  charges,  and  renders  the  overplus,  if  there 
be  any,  to  the  mortgagor.* 

MORTGAGED  PERSONAL  PROPERTY. 

(Laws,  R.  S.  c.  74,  90  ;  and  1843.) 

Mortgages  of  personal  property  must  be  recorded 
"  as  well  by  the  clerk  of  the  town  where  the  mortgagor 
resides,  as  by  the  clerk  of  the  town  in  which  he  prin- 
cipally transacts  his  business  or  follows  his  trade  or 
calling,"  if  the  mortgagor  retains  possession  of  the 
mortgaged  property  ;  otherwise  the  mortgage  is  invalid. 

Foreclosing  a  mortgage  of  personal  property .  —  The 
mortgagee  or  his  assignee  must  give  a  written  notice 
of  an  intention  to  foreclose  a  mortgage,  to  the  mort- 
gagor, or  person  in  possession  ;  and  cause  a  copy  of 
such  notice  to  be  recorded  where  the  mortgage  is  re- 
corded, sixty  days  before  the  actual  forfeiture  of  the 
mortgaged  property. 

Attaching  fnortgaged  personal  property.  —  A  mort- 

[•  See  "  Business  Man's  Assisianl"  for  Forms  of  Morieages  of  Real  Es- 
tate and  Personal  Property ;  Assignment  of  Mortgage  ;  Pariial  Release  of 
do.  ;  Entry  by  Mortgagee  ;  Ceriificale  of  Witnesses  ;  Discharge,  &c.] 


LIEN   OF   MECHANICS   AND   OTHERS.  77 

gage  not  foreclosed  has  no  effect  in  preventing  attach- 
ments ;  but  the  mortgagee  shall  deliver  to  the  attaching 
creditor,  or  the  officer,  a  statement  in  writing,  contain- 
ing a  just  and  true  account  of  the  debt  or  demand  for 
which  the  property  is  liable  to  him,  making  demand  of 
payment,  and  if  the  same  is  not  paid  or  tendered  to 
him  within  ten  days  thereafter,  the  attachment  shall  be 
dissolved,  and  the  mortgagee  will  be  entitled  to  a  com- 
pensation for  any  damage,  sustained  by  him,  by  reason 
of  such  attachment. 

Mortgagee  summoned  as  a  trustee. — When  mortgaged 
property  is  attached,  the  mortgagee  may  be  summoned 
as  a  trustee  to  answer  respecting  the  mortgage,  and  the 
attaching  creditor  may  require  the  validity  of  the 
mortgage  to  be  tried  by  a  jury.  The  court  may  order 
the  attaching  creditor  to  pay  the  amount  ascertained 
by  examination,  or  a  verdict  of  a  jury,  to  be  justly 
due  on  the  mortgage,  and  he  may  be  reimbursed  out  of 
the  avails  of  the  property  when  sold,  or  he  may  hold 
the  property  till  the -mortgagor  shall  indemnify  him 

Penalty  for  demanding  and  receiving  more  than  is 
due  on  a  mortgage.  —  If  such  mortgagee  shall  demand 
and  receive  more  than  the  amount  due  to  him,  he  shall 
be  liable  for  the  excess,  with  twelve  per  cent,  interest, 
to  be  recovered  by  the  attaching  creditor. 


GENERAL  LIEN. 


A  LiBN  may  be  defined  a  right  which  one  person  has  to  detain  the 
property  of  another  on  account  of  lalior  expended  on  that  property,  or  tor 
the  general  balance  of  an  account  due  from  the  owner. 

As  the  common  law  imposes  on  certam  trades,  as  innkeepers  and  carriers, 
the  obligation  of  accepting  all  employment  oflered  ■wiiliin  the  limits  of  their 
occupation,  so,  in  return  for  this  obligation,  it  entitles  the  pariy  to  a  pariic- 
ular  lien  on  the  property  as  a  remuneration  for  the  tremble  and  expense 
incurred  in  the  execution  of  the  purpose  for  which  such  property  was 
entrusted. 

But  the  general  opinion  appears  to  be,  that  the  right  of  lien  is  not  confined 
to  those  trades  which  are  under  an  obligation  lo  accept  employment  from 
all  who  offer  it;  but  that  the  remedy  by  detention  extends  to  every  trade 
exercised  for  the  l)enefit  and  advantage  of  the  community. 

Attorneys  and  solicitors  have  a  lien  for  their  costs  on  the  papers  of  theif 
clients  ;  bankers,  upon  all  securities  in  the  way  of  tr.ide  ;  brokers,  factors, 
and  agents,  on  the  property  of  their  principals  in  posses>ioii,  or  even  in  the 
hands  of  purchasers;  masters  of  vessels,  on  their  cargoes,  for  wages,  or 
necessary  repairs,  during  the  voyage  ;  carriers  have  a  lien  lor  the  carriage 
price;  innkeepers  on  the  goods  and  property  of  thi-ir  guests,  for  their  food 
and  lodging,  and  on  theirhorses,  for  their  keeping  and  stahling;  insurance- 
brokers  have  a  lien  for  the  general  balance  of  their  account  on  the  policies 

u  T,  7* 


78  LIEN    OF   MECHANICS   AND    OTHERS. 

eflTected  by  them  for  their  orincipaU  ;  lastly,  millers,  packers,  wharfingers, 
dyers,  coachmakers,  calico-printers,  and  others,  have  all  a  lien  on  the 
goods  respectively  confided  to  ihem  in  the  way  of  business. 

But  as  the  right  of  lieu  is  admitted  for  the  benefit  of  trade,  it  is  confined 
in  its  operations  to  trade  only.  Therefore  no  lien  lies  for  the  pasture  of 
cattle,  or  the  keep  of  a  dog  j  or  where  there  has  been  a  special  agreement 
lo  pay  a  certain  sum  for  workmanship,  in  which  case   the  owner  of  the 

foods  on  which  the  labor  has  been  bestowed  can  only  be  made  personally 
able. 

A  right  of  lien  gives  no  general  right  to  sell  goods,  except  where  the  de- 
tention of  goods  is  creative  of  expense  when  the  lien  is  saleable.  In  case, 
too,  of  the  lien  of  cattle,  ii  is  admitted  that  they  may  be  worked  as  the 
owner  would  have  w^orked  them  ;  so  also  a  cow^  must  be  milked. 

Under  the  following  circumstances  the  right  of  lien  cannot  be  exercised: 

1.  If  the  possession  of  properly  has  been  obtained  wrongfully  or  by  misrep- 
resentation. 2.  If  it  has  been  entrusted  solely  on  the  personal  credit  of  the 
owner  of  the  lien,  or  delivered  by  an  authorized  servant  or  agent.  3.  And 
lastly,  no  lien  can  be  acquired  over  propeity  delivered  by  a  bankrupt,  or 
one  in  contemplation  of  insolvency. 

It  is  also  material  to  remark,  that  if  tiie  holder  of  goods  accept  a  specific 
security  in  lieu,  or  voluntarily  pan  with  the  possession  of  the  whole,  or 
part  of  them,  he  afler^vards  loses  all  right  of  lien  upon  ihem. 

By  the  general  maritime  law,  material  men  have  a  three-fold  remedy  for 
supplies  and  materials  furnished  lo  a  tbreign  ship  :  1st,  against  the  vessel : 
2diy,  against  the  owners  ,  .3dly,  against  the  master.  The  lien  of  material 
men  must  be  enforced  within  a  reasonable  time  after  the  debt  is  due,  or  it 
will  not  avail  against  a  purchaser.  (2  Story's  R.  456.) 

The  mechaiiic  has  a  lien  upon  articles  repaired  by  him,  for  his  labor  and 
materials,  and  may  retain  possession  until  he  is  paid.  (3  N.  Y.  628.) 

Where  a  pany  has  undertikento  perform  labor  in  transporting  goods, 
and  has  performed  but  part  of  the  service,  he  cannot  hold  the  goods  on  the 
ground  of  lien  for  what  he  has  done.  (9  N.  U.  42.) 

LIEN    OF   MECHANICS,    SHIPWRIGHTS,    AND   OTHERS. 
(Laws,  R.  S.  c.  117  ;  and  1848.) 

Lien  on  land  for  cost  of  erecting  or  repairing  build- 
ings.— A  written  contract  with  the  owner  of  land,  signed 
by  him  or  his  authorized  agent,  for  erecting  or  repairing 
any  building  or  the  appurtenances  thereof,  on  the 
game  land,  may  be  recorded  by  the  register  of  deeds 
for  the  county  where  the  land  lies,  and  the  contractor 
will  thereby  obtain  a  lien  on  the  land  described  for  the 
amount  of  the  contract,  which  continues  six  months 
after  the  money  or  the  last  instalment  thereof  is  due. 

A  petition  for  the  sale  of  the  land,  may  be  filed  in 
the  office  of  the  clerk  of  the  court  of  common  pleas, 
at  any  time  after  the  expiration  of  sixty  days  from  the 
time  appointed  for  any  payment  which  may  be  neglect- 
ed or  refused,  and  order  of  notice  may  be  obtained  for 
a  hearing  at  a  day  appointed,  not  less  than  fourteen 
days  after  the  service  of  the  notice  upon  the  owner  of 
the  land,  with  a  copy  of  the  petition.  At  the  time  ap- 
pointed, or  at  a  subsequent  time  to  which  the  hearing 
may  be  adjourned,  the  petitioner  and  all  others  holding 


LIEN    OF   MECHANICS   AND   OTHERS.  79 

similar  liens,  and  having  served  similar  notices,  ac- 
cording to  an  order  of  court,  may  proceed  to  prove 
their  claims,  and  the  court,  at  the  request  of  either 
party,  may  order  a  trial  by  jury  ;  and  if  the  lien  of  any 
creditor  be  established,  the  court  may  order  a  sale  of 
the  premises,  or  of  any  part  thereof  which  may  be  sep- 
arated from  the  rest  without  injury  to  the  remainder, 
for  the  equal  benefit  of  all  creditors  who  shall  have 
established  their  claims  under  liens,  and  also  for  the 
benefit  of  attaching  creditors,  in  the  order  of  their 
claims,  the  latter  to  be  paid  on  the  executions  recover- 
ed in  their  several  actions,  unless  the  fund  shall  be  ex- 
hausted by  prior  liens  or  attachments. 

Persons  holding  liens  for  debts  due  hut  not  payable 
till  after  the  time  of  the  judgment,  are  entitled  to  share 
with  others,  a  discount  or  rebate  of  interest  being 
made  for  the  time  to  elapse  previous  to  the  time  of  pay- 
ment. 

Lands  sold  by  order  of  court  for  payment  of  liens, 
may  be  redeemed  within  a  year. 

If  a  petitioner  for  the  sale  of  lands  subject  to  lien 
reside  out  of  the  State,  his  petition  must  be  indorsed, 
like  an  original  writ,  by  some  sufficient  person  who  is 
an  inhabitant  of  the  State. 

If  a  petition  be  filed  within  six  months  after  the 
amount  contracted  for  on  the  last  instalment  thereof 
becomes  due,  and  payable,  a  lien  continues  till  the 
proceedings  are  closed,   otherwise  it  is  dissolved. 

A  contractor  prevented  by  the  other  party  from  com- 
pletely fulfiling  his  contract,  without  his  own  default, 
is  entitled  to  a  proportionate  compensation  and  the 
benefit  of  his  lien,  for  so  much  as  he  may  have  per- 
formed. 

The  petition  may  be  in  the  following  form  : 
Petition  for  Sale  of  the  Land. 

To  the  Honorable  the  Justices  of  the  Court  of  Common  Pleas, 

next  to  be  holden  at ,  within  and  for  the  county  of . 

The  petition  of  A.  B.,  of aforesaid,  builder,  respectfully 

represents, 

That,  by  a   contract  in  writings,  made  and  executed  by  and 

between  him,  the  said  A.  B.,  and  C.  D.,  of  said ,  merchant. 


8^  LIEN    OF    MECHANICS   AND    OTHERS. 

on  the day  of ,  in  the  year ,  and  recorded  in  (he 

Registry  of  Deeds,  Lib.  — ,  fol.  — ,  a  counterpart  of  which 

is  hereto  annexed,  he,  the  said  A.  B.,  engaged  and  covenanted 
to  and  with  the  said  C.  D.  to  build  and  erect  a  dwelling-house 
and  out-houses,  of  the  dimensions  in  the  said  contract  mentioned, 
and  to  furnish  timber,  stone,  brick,  and  all  other  materials  for 
the  same,  upon  a  certain  tract  or  parcel  of  land  belonging  to  the 

said  C.  D.,  situate  in aforesaid,  and  which  is  bounded  and 

described  as  follows :  [here  describe  the  land :]  and  by  the  same 
contract  the  said  C.  D.  agreed  and  covenanted  to  and  with  him, 

the  said  A.  B.,  to  pay  him,  the  said  A.  B.  the  sum  of thousand 

dollars  for  the  work,  labor,  and  materials,  to  be  expended  and  ap- 
plied'by  him  in  the  erection  of  the  said  house  and  out-houses,  in 

equal  instalments  of dollars  each,  payable  respectively 

in and months,  from  the day  of then  next, 

if  the  said  house  and  out-houses  should  be  completed  and  finished 

within from  that  date.     And  the  said  A.  B.  avers  that  the 

same  were  erected,  and  finished,  and  ready  to  be  occupied,  on 
the day  of last,  within  the  term  provided  for  the  erec- 
tion thereof,  and  that  the  whole  of  the  said  instalments 

were  due  on  that  day,  but  that  only  two  of  the  same,  to  wit,  the 

sura  of dollars,  have  been  paid  by  the  said  C.  D.,  and  that 

the  remaining ,  to  wit,  the  sum  of dollars,  are  still  due 

and  unpaid.  Wherefore  he  prays,  that  this  court  may  issue  an 
order  for  the  sale  of  the  land  aforesaid,  and  that  the  proceeds 
thereof  may  be  applied  to  the  discharge  of  his  aforesaid  demand 

of  dollars,    with  interest  upon  each  of  the  said  unpaid 

instalments,  from  the  times  when  they  respectively  became  due, 
and  the  cost  of  this  petition,  according  to  the  statute  in  such 
case  made  and  provided. 

Dated  at aforesaid,  the  first  day  of  June,  A.  D.,  18 — . 

A.  B.  (L.  s.) 

C.  D.  (l.  s.) 
in  presence  of 

A  lien  on  ships  and  vessels  is  allowed  for  labor  per- 
formed, or  materials  used  in  the  construction  or  repair 
of,  or  for  provisions  and  stores,  or  other  articles  fur- 
nished for  or  on  account  of  such  ships  or  vessels,  with- 
in this  Commonwealth,  and  the  lien  extends  to  their 
tackle,  apparel  and  furniture,  and  takes  precedence  of 
all  other  liens,  except  mariners'  wages. 

Such  lien  will  cease  in  twenty  days  after  their  depar- 
ture from  the  port  where  the  debt  shall  be  contracted, 
to  another  port  in  this  Commonwealth,  or  immediately 
after  their  arrival  at  a  port  out  of  this  Commonwealth. 
Liens  on  foreign  ships  or  vessels  remain  as  they  were 
before  this  statute  was  passed. 


ARBITRATION   BY   REFERENCE.  81 

ABBITEATION  BY  EEFERENCE,  AUTHENTICATED  BY  A 
JUSTICE   OF  THE  PEACE. 

(Laws,  R.  S.  c.  114.) 

Persons  who  might  maintain  or  defend  a  suit  at  law 
or  in  chancery,  for  a  matter  not  affecting  real  estate, 
may  submit  their  controversies  to  arbitration  by  a  re- 
ference made  by  themselves,  or  their  attorneys,  before 
a  justice  of  the  peace,  authenticated  by  his  certificate, 
substantially  in  the  following  form  : — 

Form  of  Submission,  and  Certijicate. 

Knovtr  all  men,  that  A.  B.,  of ,  and  C.  D.,  of ,  have 

agi'eed  to  submit  the  demand,  a  statement  whereof  is  hereto 
annexed,  [and  all  other  demands  between  them,  as  the  case 
may  be,]  to  the  determination  of  E.  F.,  G.  H.,  and  I.  J.,  the 
award  of  whom,  or  the  greater  part  of  whom,  being  made  and 

reported   within  from   this  day    to  the    court  ol  common 

pleas,  for  the  county  of ,  the  jxidgment  thereon  shall   be 

final ;  and  if  either  of  the  parties  shall  neglect  to  appear  before 
the  arbitrators,  after  due  notice  given  them  of  the  time  and 
place  appointed  for  hearing  the  parties,  the  arbitrators  may  pro- 
ceed in  his  absence.     Dated  this ,  day  of ,  in  the  year 

A.  B.         (L.  s.) 

C.  D.         (L.  s.) 

This  reference  may  be  of"  all  demands,"  or  of  any 
specific  claims  or  controversies,  described  so  as  to  show 
what  is  the  subject  of  the  reference,  or  it  may  be  va- 
ried in  any  other  manner,  according  to  the  agreement 
of  the  parties 

Neither  party  may  revoTce  the  submissioji  without  the 
consent  of  the  other  ;  and  if  either  party  neglect  to  ap- 
pear, after  due  notice,  the  arbitrators  may  proceed  to 
hear  and  determine  the  cause,  upon  the  evidence  pro- 
duced by  the  other  party. 

All  the  arbitrators  shall  meet  and  hear  the  parties, 
but  an  award  of  a  majority  shall  be  valid,  unless  other- 
wise required  in  the  submission. 

The  time  limited  for  making  and  reporting  the 
award  maybe  determined  by  the  parties,  but  an  award 
made  and  reported  after  the  time  limited  in  the  sub- 
mission, will  not  be  binding  unless  recommitted  by  the 
court,  to  which  it  may  be  returned  and  again  reported. 

The  award  shall  be  enclosed  and   sealed,  by  the 


BSi  ACKNOWLEDGMENT    OF   DEBT. 

arbitrators,  and  transmitted  by  one  of  them  to  the 
court*  designated  in  the  agreement. 

Costs  of  services  of  arbitrators. — Arbitrators,  if  the 
submission  does  not  otherwise  provide,  may  award  costs 
at  their  discretion,  including  compensation  for  their 
own  services,  but  the  court  may  reduce  the  award  of 
compensation  for  services  of  the  arbitrators,  if  un- 
reasonable. 

Judgment  of  the  court. — If  the  proceedings  are  reg- 
ular, and  there  be  no  fraud  in  the  arbitration,  the 
award  will  generally  be  confirmed,  and  execution  will 
issue  for  the  amount,  but  for  any  legal  and  sufficient 
reason  the  court  may  reject  the  award,  or  recommit  it 
to  the  same  arbitrators  for  a  re-hearing. 


ACKNOWLEDGMENT  OF  DEBT. 

(Laws,  R.  S.  c.  118.) 

Debtor  may  bind  himself  by  acknowledgment.  —  Any 
person,  who  is  by  law  capable  of  binding  himself  by  a 
common  bond,  may  enter  into  a  recognizance,  in  the 
manner  hereinafter  mentioned,  for  the  payment  of  any 
debt  that  he  may  owe,  and  may  thereby  subject  his 
person,  and  his  goods  and  estate,  to  be  taken  in  execu- 
tion for  such  debt. 

To  be  taken  before  C.  C.  P.,  or  clerk  thereof.  —  A 
recognizance  may  be  taken  before  the  court  of  com- 
mon pleas  in  any  county,  in  term  time,  or  before  the 
clerk  of  said  court,  in  vacation,  and  shall  be  substan- 
tially as  follows  : — 

Form  of  the  Acknowledgment. 

Be  it  remembered,  that  on  this day  of A.  B.  of 

personally  appeared  before  the  court  of  common  pleas,  now  held 

at ,  within  and  for  the  county  of ,  [or,  before  U.  X.  the 

clerk  of  the  court  of  common  pleas  for  the  county  of ,]  and 

acknowledged  himself  to  be  indebted  to  C.  D.  of in  the  sum 

of to  be  paid  to  the  said  C.  D.,  on  the  — —  day  of ,  [or, 

•  The  parties  may  consenl  to  open  the  award,  and  abide  by  its  decision 
without  presenting  it  to  the  court,  by  signing  the  following  agreement : — 

^  ss.     B ,  Nov.  3, 184-.     We  the  subscribers  individually  agree 

o  open  the  within  Award,  and  to  abide  by  the  decision  of  it,  the  game  as 
if  opened  in  Court. 

C.  D.,  Pres'l  of Ins.  Com. 

A.  B.,  Party  Injured. 
See  "  Business  Man's  Assistant"  for  forms  of  Bond  of  Stibmissin 
and  Award  of  Referees. 


ACKNOWLEDGMENT    OF   DEBT.  83 

itt years or  in months,  from  this  day,l  with  in- 
terest from  this  day  ;  and  if  not  then  paid,  to  be  levied  upon  his 
goods  and  chattels,  [lands  and  tenements,]  and  for  want  thereof, 

upon  his  body.     In  witness  whereof  the  said hath  hereto 

set  his  hand.                                                         A.  B.         (l.  s.) 
U.  X.,  clerk  of  the  court  of  common  pleas  for  the  county  of .* 

Recognizance  to  he  recorded. — The  recognizance 
shall  be  attested  by  the  clerk,  whether  taken  in  term 
time  or  vacation,  and  shall  be  recorded  at  length  by 
him,  among  the  records  of  the  court,  and  the  original 
shall  then  be  delivered  to  the  conusee. 

Provision  as  to  interest. — The  clause,  as  to  the 
payment  of  interest,  may  be  altered  or  wholly  omitted, 
according  to  the  agreement  of  the  parties,  but  interest 
shall  always  be  allowed  for  the  delay,  if  any,  after  the 
time  of  payment,  unless  the  acknowledgment  contains 
an  express  agreement  to  the  contrary. 

Conusor  must  be  known  to  the  judge. — The  person 
offering  to  enter  into  a  recognizance  must  be  known 
to  the  judge  or  the  clerk,  or  his  identity  must  be 
proved. 

Proceedings  for  obtaining  an  execution.  —  Before 
the   issuing  of    the    execution,    the   original   recogni- 

*  If  the  debtor  do  not  appear  in  person,  and  acknowledge  ihe  debt,  he 
may  empower  his  creditor  to  confess  judgment,  as  follows  : — 

"I,  A.  B.,  have  this  day  purchased  of  C.  D.  goods  amounting  to  the  sum 
of  $500-00,  for  which  goods  I  agree  to  pay  him  in  six  months  from  dale. 
And  ill  case  of  default  of  my  payment  of^the  same  wiih  punctuality,  1  here- 
by empower   C   D.,  or  any  attorney  at  law  appointed  by  him,   to  appear 

before  any  justice  of  the  peace  in  the  county  oC ,  and  stale  of  —  ,  and 

to  confess  judgment  on  said  debt,  in  the  payment  of  which  I  may  be  de- 
linquent. 

"  Witness  my  hand  and  seal,  this  1st  day  of  May,  A.  D.  1S49. 

"A.  B.        (L.  s.) 

"  Witness," 

Note  with  Power. 
$__  B ,Jan.  1,1849. 

Six  months  after  dnte  I  promise  to  pay  to  the  order  of  C.  D  dollars, 

for  value  received,  with  interest.  And  1  do  hereby  constitute  and  appoint 
C.  D.,  ("rany  Attorney  at  Law  appointed  by  said  C.  D.,)  in  my  name  and 

behalt',  to  appear  in  any  Court  of ,  or  before  any  Jusiice  of  the  Peace, 

in  the  State  of ,  at  any  time  al'tenhis  obligclion  becomes  due,  and  to 

waive  process  and  service  hereof,  and  to  confess  judgment  in  favor  of  the 
holder  of  this  obligaiiun,  for  the  above  sura,  interest  and  costs,  with  release 
of  errors,  &c. 

Witness  my  hand  and  seal,  this day  of ,  one  thousand  eight 

hundreo  and  .  A.  B.        [l.  s.J 

Sealed  and  delivered  inpresence  of 

The  difference  between  a  sealed  note,  and  one  without  a  seal  is,  that 
the  former  is  not  barred  by  the  statute  of  limitation. 


84  HOTEL   AND   BOARDING-HOTJSE-KEEPERS. 

zance  shall  be  produced  and  delivered  to  the  clerk,  and 
shall  be  filed  and  preserved  by  him,  in  like  manner  as 
is  done  with  bonds,  or  other  evidences  of  debt,  upon 
which  judgment  is  rendered,  and  the  clerk  shall  com- 
pute the  amount  due  on  the  recognizance,  deducting 
the  payments,  if  any,  that  shall  have  been  made  and 
indorsed  thereon,  and  shall  issue  execution  for  the  sum 
then  due,  which  shall  be  directed  and  served  like  an 
execution  issued  on  a  judgment. 

Recording  recognizance. — A  recognizance  for  debt 
may  be  taken  before  a  justice  of  the  peace,  with  like 
effect,  excepting  that  execution  issuing  thereon  cannot 
be  levied  on  land.  If  the  creditor  wishes  to  levy  the 
execution  on  land^  he  may  have  this  recognizance  re- 
corded in  the  office  of  the  clerk  of  the  court,  within 
ninety  days  from  the  date,  and  the  clerk  may  issue 
execution  to  be  levied  on  lands,  which  the  justice  of  the 
peace  is  not  authorized  to  do. 

Effects  and  remedies. — In  its  eflfects  and  in  the  re- 
medies for  any  wrongful  proceeding  under  it,  an  ac- 
knowledgment is  like  an  ordinary  judgment  of  court, 
except  that  an  execution  may  issue  at  any  time  within 
three  years  from  the  time  therein  set  for  payment,  or 
within  three  years  from  the  time  of  a  payment  made 
and  thereon  indorsed. 

Fees  of  the  clerk  and  justice.  —  The  fee  to  the 
clerk  or  justice  of  the  peace,  for  taking  and  recording 
an  acknowledgment  is  fifty  cents ;  to  the  clerk  for  re- 
cording a  recognizance,  taken  before  a  justice  of  the 
peace,  twenty-five  cents. 


BIGHTS  AND  LIABILITIES   OF  HOTEL   AND  BOAEDING- 
HOUSE-KEEPERS. 

Every  person  who  makes  it  his  business  to  entertain 
travellers  and  passengers,  and  provide  lodging  and  ne- 
cessaries for  them  and  their  horses,  and  attendants, 
is  a  common  innkeeper;  and  it  is  in  no  way  material 
whether  he  has  a  sign  before  his  door  or  not.* 

*  The  Revised  Statutes  of  Massacliusetls  require  that  innkeepers  be 
licensed,  either  by  the  Mayor  and  Aldermen  of  cities,  or  by  County  Coni- 
missionera.    He  'shall  have  a  sign  affixed  un  or  near  hia  house,  with  his 


HOTEL   AND    BOARDING-HOUSE-KEEPEUS.  85 

Every  innkeeper  is  bound  to  receive  all  guests  who 
apply,  and  tender,  or  are  able  and  ready  to  pay  the 
customary  hire,  and  are  not  drunk  or  disorderly,  or  la- 
boring under  contagious  or  infectious  diseases.  He 
has  no  right  to  say  to  one,  you  shall  come  into  my  inn, 
and  to  another,  you  shall  not,  as  every  one  coming  and 
conducting  himself  in  a  proper  manner,  has  a  right  to 
be  received.  If  the  innkeeper  neglects  or  refuses  so 
to  do,  he  is  liable  to  an  action  for  the  recovery  of  any 
damages  that  may  have  been  sustained  by  reason  of  such 
refusal.  But  he  has  at  all  times  the  right  to  demand 
payment  before  consenting.  The  length  of  time  that 
a  man  is  at  an  inn  makes  no  difference,  whether  he 
stays  a  week,  or  a  month,  or  longer;  so,  always,  that 
though  not  strictly  transiens,  he  retains  his  character 
as  a  traveller. 

He  must  accommodate  his  guests  with  board  and 
convenient  lodging  rooms;  and  take  suitable  care  of 
their  goods  and  baggage ;  and  supply  all  reasonable 
wants  and  requests  at  a  fair  rate  of  compensation.  The 
guests  must  conform  to  the  reasonable  rules  and  regu- 
lations of  the  house,  and  if  a  person  is  disorderly,  the 
innkeeper  may  eject  him  from  the  house  All  that  is 
required  of  the  innkeeper  is  to  furnish  reasonable  and 
proper  accommodation  for  his  guests  ;  and  if  he  tender 
such  accommodation,  and  the  guest  refuses  it,  he  may 
compel  the  latter  to  quit  the  inn,  and  seek  for  accom- 
modation and  lodging  elsewhere. 

An  innkeeper  is  chargeable  for  the  loss  of  the  goods 
of  his  guest,  committed  to  his  care;  unless  the  loss  is 
caused  by  the  act  of  God,  or  of  the  common  enemy,  or 
by  the  neglect  or  fault  of  the  guest.  It  is  not  necessary 
that  the  goods  should  have  been  in  the  special  keeping 
of  the  innkeeper,  in  order  to  make  him  liable;  if  they 
are  in  the  inn,  that  is  sufficient  to  charge  him  ;  and  it 
makes  no  difference,  that  the  goods  were  in  the  guest's 

name  and  employment,  or  forfcit  twenty  dollars.  And  he  shall  at  all 
times  be  furnished  with  suitable  provisions  and  lodgings,  for  strangers  and 
travellers,  and  with  stable  room,  hay  and  povender,  for  their  horses  and 
cattle.  If  he  shall,  when  requested,  refuse  to  receive  and  make  suitable 
provision  for  straitgers  and  travellers,  their  horses  and  cattle,  he  shall  be 
punished  by  a  fine  not  exceeding  fifty  dollars,  and  by  order  of  court,  be 
deprived  of  his  license.  He  shall  not  sufffr  any  gaming  in  or  about  his 
premises,  on  pain  of  forfeiting  ten  dollars  for  every  offence. 
L.  T.  8 


86  HOTEL   AND    BOARDING-HOUSE-KEEPERS. 

chamber,  the  key  to  which  had  been  delivered  to  the 
guest  by  the  landlord ;  and  in  such  a  case,  the  landlord 
has  been  held  liable,  where  the  guest  left  the  chamber 
door  open.  But  if  the  landlord  directs  his  guest  to 
place  his  baggage  or  goods  in  a  certain  place,  or 
he  will  not  be  responsible  for  them,  and  the  guest  fails 
to  do  so,  the  landlord  will  not  be  liable  for  them. 

If  a  horse,  chaise  and  harness  are  delivered  to  an 
innkeeper,  and  he  receives  no  separate  compensation 
for  keeping  the  chaise  and  harness,  he  is  nevertheless 
liable  for  the  loss  of  them  ;  for  the  payment  for  keep- 
ing the  horse,  includes  a  compensation  for  keeping  the 
chaise  and  harness.  If  a  person  commits  his  horse  to 
an  innkeeper  to  be  fed,  he  is  a  guest,  although  he  do 
not  himself  lodge  or  receive  any  refreshment  at  the 
inn.  If  an  innkeeper,  being  also  a  keeper  of  a  livery 
stable,  receives  a  horse  to  be  fed,  without  giving  no- 
tice that  he  receives  it  as  keeper  of  the  livery  stable, 
he  will  be  answerable  as  innkeeper  for  the  loss  of  it. 

As  the  law  impo-ses  upon  the  common  innkeeper  the 
burden  of  receiving  and  taking  care  of  the  goods  and 
baggage  of  all  travellers  and  guests  who  alight  at  and 
take  up  their  abode  within  the  inn,  it  gives  him  a  right 
to  retain  such  goods  and  baggage,  as  a  pledge  for  the 
payment  of  the  reckoning  of  the  guest. 

If  a  horse  is  put  up  in  the  stable  of  the  inn  by  a 
guest,  the  innkeeper  has  a  lien  on  the  animal  for  its 
keep,  whether  the  horse  be  the  property  of  the  guest, 
or  of  some  third  party,  from  whom  it  has  been  fraudu- 
lently taken,  or  stolen,  unless  the  innkeeper  knew  at 
the  time  he  received  the  guest  that  he  Avasnot  the  true 
owner  of  the  horse. 

-  An  innkeeper  is  responsible  if  a  carriage  of  a  travel- 
ler containing  goods,  be  deposited  in  a  place  designated 
by  the  servant  of  the  innkeeper,  although  such  place 
be  an  open,  unenclosed  place  near  the  highway. 

Boarding-House-keepers  are  not  liable  to  the  same 
extent  as  innkeepers  ;  they  are  only  bound  to  take 
such  persons  as  they  please.  They  must  furnish 
suitable  accommodations  for  their  boarders,  and  pro- 
vide for  their  reasonable  wants.  Their  apartments 
must  be  clean  and  free  from  bugs,  &:c.     They  are  not 


LEGAL   RIGHTS    OF   MARRIED   WOMEN.  87 

liable  to  the  same  extent  as  innkeepers,  for  the  loss  of 
the  goods  of  their  boarders ;  but  they  must  exercise 
ordinary  diligence  for  its  safety. 

If  a  man  comes  to  an  inn  under  a  special  contract 
for  his  bed  and  board,  and  sojourn  at  an  inn,  he  is  not 
in  the  sense  of  the  law  a  guest,  but  a  boarder.  If,  there- 
fore, he  is  robbed  in  the  house,  he  cannot  charge  the 
landlord  as  an  innkeeper,  but  as  an  ordinary  lodging 
house-keeper. 

LEGAL  EIGHTS  OF  MARRIED  WOMEN. 

(Laws,  1S42,  '44,  '45,  '46.) 

Contract  before  marriage  that  wife  shall  retain  her 
property. — The  parties  to  an  intended  marriage  may, 
before  marriage,  contract  that  the  wife  shall  hold  her 
estate,  or  any  part  thereof,  which  is  hers  at  the  time  of 
the  marriage,  to  her  separate  use,  free  from  the  control 
of  her  husband.  Such  contract  must  contain  a  sche- 
dule of  the  property  to  be  secured  to  the  wife,  and  both 
must  be  recorded,  either  before  the  marriage,  or  within 
ninety  days  thereafter,  in  the  registry  of  deeds  for  the 
county  in  which  the  husband  resides  at  the  time,  or,  if 
he  be  not  a  resident  of  the  Commonwealth,  then,  in 
the  county  in  which  the  wife  resides  at  the  time,  if 
such  record  be  made  before  marriage,  or  in  which  she 
last  resided,  or  if  made  after  marriage;  and  if  not  so 
recorded,  said  contract  shall  be  void. 

Married  tooman  may  receive  property  by  icill  or  deed 
to  her  separate  use. — A  married  woman  may  receive  a 
conveyance,  devise  or  bequest  of  any  estate,  to  be  held 
by  her,  without  the  intervention  of  a  trustee,  to  her  sole 
and  separate  use,  free  from  the  interference  or  control 
of  her  husband.  But  such  grant  or  conveyance  must, 
within  ninety  days  from  the  delivery  thereof,  be  record- 
ed in  the  registry  of  deeds  for  the  county  in  which  the 
husband  resides  at  the  time  of  such  delivery  ;  or,  if  he 
be  not  a  resident  of  this  Commonwealth,  for  the  county 
in  which  the  grantor  shall  then  reside;  otlierwise,  the 
property  may  be  seized  by  the  creditors  of  the  husband.* 

*  See  forms  of  deeds  for  conveyance  of  property  to  married  women  in 
"  Business  Man's  Assistant." 


88 


LEGAL    RIGHTS   OF    MARRIED    WOMEN. 


Married  woman,  how  may  sue  and  be  sued  in  regard 
to  her  separate  property . — Whenever  any  property  shall 
be  secured  to  the  sole  and  separate  use  of  a  married 
woman,  as  above,  such  woman  shall,  in  respect  to  such 
property,  have  the  same  rights  and  powers,  and  be 
entitled  to  the  same  remedies,  in  her  own  name,  at  law 
and  in  equity,  and  be  liable  to  be  sued  at  law  and  in 
equity  upon  any  contract  by  her  made,  or  any  wrong 
by  her  done,  in  respect  to  such  property,  and  also  upon 
any  contract  by  her  made  or  wrong  by  her  done  before 
her  marriage,  in  the  same  manner  and  with  the  same 
effect  as  if  she  were  unmarried  ;  and  such  property 
may  be  attached,  or  taken  in  execution  in  any  such  suit. 

Right  of  husband  to  convey  to  wife,  ^c. — Nothing 
in  the  foregoing  provisions  is  intended  to  empower  the 
husband  to  convey  any  of  his  property  to  his  wife  in 
any  other  manner,  or  with  any  other  effect,  than  as  if 
the  same  had  not  been  passed. 

When  married  woman  may  make  a  will. — Any  mar- 
ried woman  of  the  age  of  twenty-one  years,  and  of 
sound  mind,  may  devise  and  dispose  of,  by  last  will 
and  testament,  legally  executed,  any  property  held  in 
her  own  right,  and  separate  from  that  of  her  husband  ; 
provided,  that  the  rights  and  interests  of  the  husband 
in  any  such  property  shall  in  no  way  be  affected  there- 
by;  nor  shall  such  will  be  valid,  unless  such  husband, 
being  of  sound  mind  and  competent  to  act,  shall  give  his 
assent  thereto,  expressed  in  writing,  and  endorsed 
thereon  ;  and,  provided  also,  that  any  such  will  may  be 
revoked  by  such  married  woman,  at  her  pleasure,  and 
without  the  consent  of  her  husband. 

To  whom  her  property  goes,  where  married  woman 
dies  intestate. —  If  any  married  woman,  holding  proper- 
ty to  her  separate  use  by  virtue  of  the  foregoing  pro- 
visions, shall  die  intestate,  (that  is,  without  having 
disposed  of  her  property  by  will,)  all  her  personal 
property  thus  held  goes  to  her  husband,  unless  it  is 
otherwise  stipulated  in  the  contracts  or  conveyances 
hereinbefore  mentioned  ;  but  he  holds  such  property 
subject  to  wife's  debts. 

Married  woman  may  have  trustee  appointed,  ^c. — 


LEGAL   RIGHTS   OF   MARRIED   WOMEN.  89 

Any  married  woman  holding  property  to  her  sole  use, 
may  petition  the  supreme  judicial  court  to  have  a 
trustee  appointed  to  take  charge  of  her  property. 

Separate  property  of  a  married  woman,  how  held, 
used  and  invested. — None  of  the  property  to  be  holden 
by  any  married  woman,  by  virtue  of  the  foregoing 
provisions,  shall  be  used  or  employed  for  the  purposes 
of  trade  or  commerce  ;  but  the  same  shall  be  invested 
in  real  estate,  in  stocks  of  the  United  States,  in  state 
stock,  in  corporation  stock,  in  personal  securities,  or  in 
furniture  in  the  actual  use  and  occupation  of  such 
woman. 

Insurance  for  the  benefit  of  a  married  woman. — Any 
policy  of  insurance  made  by  any  insurance  company 
on  the  life  of  any  person,  expressed  to  be  for  the  benefit 
of  a  married  woman,  whether  the  same  be  effected  by 
herself  or  by  her  husband,  or  by  any  other  person  on 
her  behalf,  shall  inure  to  her  separate  use  and  benefit 
and  that  of  her  children,  if  any,  independently  of  her 
husband  and  of  his  creditors,  and  also  independeiitly  of 
any  other  person  effecting  the  same  in  her  behalf,  and 
his  creditors,  and  trustees  may  be  appointed  by  the 
court,  to  hold  and  manage  the  interest  of  any  married 
woman  in  any  such  policy  or  the  proceeds  thereof. 

Rights  of  married  woman  to  personal  estate  of  husband 
not  disposed  of  by  will. — When  any  married  man  shall 
die  possessed  of  any  personal  estate,  not  lawfully  dis- 
posed of  by  his  last  will,  his  widow  shall  be  allowed  all 
her  articles  of  apparel  or  ornament,  according  to  the 
.degree  and  estate  of  her  husband  ;  and  she  may  remain 
in  his  house  forty  days  after  his  death,  free  of  rent, 
and  have  her  reasonable  sustenance  out  of  his  estate  ; 
together  with  such  further  necessaries  as  the  judge 
shall  order  to  be  allowed  her  for  the  use  of  herself  and 
the  minor  children  under  her  care. 

If  the  intestate  leave  a  widow  and  issue,  the  widow 
shall  be  entitled  to  one-third  of  his  personal  estate,  after 
the  payment  of  his  debts.  If  there  be  no  issue,  she  is 
entitled  to  one-half.  If  he  leave  no  kindred,  she  is 
entitled  to  the  whole. 

Right  of  a  married  woman  to  administer  upon  the 

L.  T.  8* 


90  LEGAL   RIGHTS  OF   MARRIED    WOMEIf. 

estate  of  her  husband  dying  intestate. — Administration 
of  the  estate  of  an  intestate  shall  be  granted  ;  in  the 
first  place,  to  his  widow,  or  next  of  kin,  or  both,  as  the 
judge  of  probate  shall  think  fit ;  and  if  they  do  not 
voluntarily  either  take  or  renounce  the  administration, 
they  shall,  if  resident  within  the  county,  be  cited  by 
the  judge  for  that  purpose.  If  the  persons  so  entitled 
to  administration  are  incompetent,  or  evidently  unsuit- 
able for  the  discharge  of  the  trust,  or  if  they  neglect, 
without  any  sufficient  cause,  for  thirty  days  after  the 
death  of  the  intestate,  to  take  administration  of  his 
estate,  the  judge  of  probate  shall  commit  it  to  one  or 
more  of  the  principal  creditors. 

Married  woman's  right  to  dower  in  the  real  estate  of 
her  deceased  husband. — Upon  the  death  of  the  husband, 
his  wife  is  entitled  to  be  endowed,  for  her  natural  life, 
of  the  third  part  of  all  the  lands  whereof  he  was  seized, 
at  any  time  during  the  marriage.  If  any  provision  be 
made  for  her  in  the  will,  she  may  make  her  election  six 
months  after  probate,  whether  she  will  take  such  pro- 
vision or  receive  her  thirds,  but  she  cannot  take  both 
unless  it  plainly  appears  to  be  the  intention  in  the  will.* 

It  is  not  necessary,  to  entitle  the  widow  to  dower, 
that  the  husband  should  be  seized  of  the  lands  at  his 
decease;  it  will  be  sufficient,  if  at  any  time  during  the 
marriage,  he  was  seized  of  them,  although  he  may  have 
conveyed  them  to  a  third  person  before  his  decease, 
provided  the  wife  has  not  relinquished  her  right  of 
dower  in  the  same. 

Payment  of  wages  to  married  women. — In  all  cases 
where  married  women  shall  hereafter,  by  their  own 
labor,  earn  wages,  payment  may  be  made  to  them  for 
the  same. 

The  receipt  of  any  married  woman,  for  the  payment 
of  money  deposited  by  her,  is  a  valid  discharge  to  any 
individual  or  savings   bank   making   such  payments. 


*  For  Form  of  Will,  see  "  Business  Man's  Assistant." 


PART    IV. 

TAXATION  OF  COSTS  IN 
CIVIL   ACTIONS. 


RECOVERY    OF    COSTS. 

(Laws,  R.  S.c.  121.) 

In  all  civil  actions,  the  party  prevailing  shall  recover 
costs  against  the  other  party,  except  in  those  cases  in 
which  a  different  provision  is  made  by  law. 

Where  a  plaintiff  appeals  from  the  decision  of  the 
justice  of  the  peace,  and  does  not  recover,  in  the  court 
of  common  pleas,  a  greater  sum  than  that  awarded  him 
by  the  justice,  his  claim  for  costs  shall  not  exceed  one 
quarter  part  of  the  sum  thus  awarded  him. 

In  all  personal  actions,  (excepting  actions  of  replev- 
in and  those  affecting  the  title  to  real  estate,)  brought 
originally  in  the  court  of  common  pleas,  if  the  plaintiff 
does  not  recover  more  than  twenty  dollars,  his  claim 
for  costs  shall  not  exceed  one  quarter  of  the  amount 
recovered  by  him. 

If,  in  such  case,  (where  not  more  than  twenty  dol- 
lars is  recovered,)  the  defendant  appeals,  and  the 
amount  thus  awarded  in  the  court  of  common  pleas  is 
not  reduced  in  the  supreme  court,  the  plaintiff  shall  be 
entitled  to  double  costs,  incurred  after  the  appeal ;  but 
only  to  quarter  costs,  incurred  before  the  appeal. 

If  plaintiff  appeals,  and  does  not  recover  a  greater 
amount  than  that  awarded  him  in  the  court  of  common 
pleas,  the  defendant  is  entitled  to  his  costs,  incurred 
after  the  appeal. 

If  plaintiff  recovers,  in   a  personal  action,  in  the 


92  TAXATION   OP   COSTS   IN   CmL   ACTIONS. 

court  of  common  pleas,  more  than  twenty  dollars,  and 
less  than  one  hundred  dollars,  and  appeals  and  does 
not  recover  a  larger  sum,  the  defendant  shall  be  enti- 
tled to  his  costs,  incurred  after  such  appeal  ;  if  the 
plaintiff  does  recover  a  greater  sura,  then  he  is  entitled 
to  full  costs  in  both  courts.  If  in  such  case  the  de- 
fendant appeals,  and  does  not  get  the  sum  awarded 
against  him  reduced,  the  plaintiff  shall  be  entitled  to 
double  costs,  incurred  after  the  appeal;  if  he  succeeds 
in  getting  the  amount  reduced,  then  he  shall  be  enti- 
tled to  his  costs,  incurred  after  the  appeal. 

If  it  appears  that  there  was  reasonable  cause  for  ap- 
peal, the  supreme  court  may,  in  their  discretion,  ex- 
empt the  appellant  from  the  payment  of  the  costs  of  the 
appeal,  and  they  may  award  to  him  his  costs,  in  whole 
or  in  part,  as  justice  and  equity  shall  require. 

Full  costs  are  allowed  to  the  prevailing  party,  in  all 
real  actions,  and  actions  of  replevin  and  trespass  on 
real  estate,  and  in  all  other  actions  where  the  title  to 
real  estate  may  be  concerned. 

Taxation  of  costs, — All  bills  of  costs,  in  suits  before 
a  justice  of  the  peace,  shall  be  taxed  by  the  justice,  and 
in  suits  before  the  court  of  common  pleas  and  the  su- 
preme judicial  court,  shall  be  taxed  by  the  respective 
clerks  of  those  courts ;  and  no  costs  shall  be  taxed 
without  notice  to  the  adverse  party  to  be  present,  pro- 
vided he  shall  have  given  seasonable  notice  in  writing 
to  the  justice,  or  clerk,  of  his  desire  to  be  present  at 
the  taxation,  or  shall  have  caused  such  notice  to  be  en- 
tered in  the  clerk's  docket ;  and  notice,  given  by  or 
to  the  attorney  in  the  suit,  shall  be  equivalent  to  notice 
by  or  to  the  party  himself.  The  usual  practice  is, 
for  the  counsel  of  the  prevailing  party  to  tax  his  bill 
of  costs,  and  submit  it  to  the  justice  or  clerk  for  ap- 
proval. 

Either  party  may  appeal  from  the  taxation  of  costs 
by  the  clerk,  to  the  court  in  which  the  suit  is  pending, 
or  to  any  one  of  the  justices  thereof 

We  shall  now  give  examples,  showing  how  bills  of 
costs  are  taxed  in  civil  actions  in  the  various  courts  in 
this  State;  and  first, 


TAXATION  OF  COSTS  IN   JUSTICES'    COURT.  93 

COSTS    TAXED  IN   JUSTICES'   COUET  FOE  THE  COUNTY 
OF   SUFFOLK. 

Plaintiff ' s  costs  where  defendant  is  defaulted  the 
first  day : — 

Blank  writ,  and  summons  thereon,  or  original  summons,  .  $017 

Declaration  in  writ, 0-50 

Service  of,  on  one  defendant,  (at  30  cents,)  and  one  mile 

travel,* 0  34 

Entry  of  an  action,  &c., 0-61 

Power  of  attorney,! 0-33 

Travel,  for  every  5  miles  out  and  back,    ....  0-33 

Attendance, 0-33 

Default, 008 


$2-69 
The  following  are  the  costs  where  the  case  is  tried : 

Writ,  .         .         .  $0-67,  including  declaration. 

Service,       .         .  0-34,  serving  summons  merely,  and  travel. 

Entry,          .         .  0-61, 

Power  of  attorney,  0-33, 


Travel, 

Attendance, 

Continuance, 

Issue, 

OflScer, 

Subpoena,    . 

One  witness. 


0.33,  for  every  5  miles  out  and  back. 

0-33,  for  each  day. 

0-12,  each. 

0-50, 

015, 

0-10, 

0-54,  including  4  cents  for  1  mile  travel. 


$4-04 

In  the  Justices'  Court  it  has  never  been  customary 
to  tax  more  than  for  one  travel,  unless  the  party  makes 
affidavit  that  he  travelled  purposely  to  attend  upon  the 
action  then  pending. 

It  has  never  been  the  practice  in  this  court  to  tax 
any  fee  for  entering  a  nonsuit,  neither  party,  the  entry 
of  satisfaction  of  judgment,  or  for  taxing  costs. 

For  filing  an  off-set  20  cents  is  taxed ;  but  nothing 
is  taxed  for  the  filing  of  trustee' s  answers,  depositions, 
or  any  other  similar  papers. 

Defendant' s  costs,  where  there  has  been  a  continu- 
ance, and  an  entry  of  judgment  for  defendant,  or  a 
nonsuit : — 

*  The  amount  of  fees  claimed  by  the  officer  for  the  service  of  the  writ 
must  be  endorsed  on  the  writ  or  they  are  not  allowed, 
t  Attorney's  Fee, 


9i  TAXATION  OP  COSTS  IN  JUSTICESi*   OOUET. 

Power  of  attorney,    $0-33, 

Travel,.         .         .      0-33,  for  every  Smiles  out  and  back. 

Attendance,  .         .      0-33,  for  each  day. 

Subpoena,       .         .      0-10, 

Witnesses,     .         .      0-54,  including  4  cents  for  one  mile  travel. 

$1-63 
When  an  action  is  continued  for  advisement  by  the 
<5ourt,  or  on  a  rule  of  reference,  nothing  is  allowed  for 
attendance,  except  for  the  day  on  which  judgment  is 
rendered. 

An  officer  is  allowed  10  cents  only  for  the  service  of 
a  subpoena,  and  4  cents  a  mile  for  returning  his  sub- 
poena from  the  place  of  service. 

In  all  cases  where  an  officer  charges  for  the  service 
of  a  keeper,  where  property  is  attached,  or  for  any  extra 
service,  he  is  compelled  to  make  oath  that  the  sum 
charged  "  is  just,  necessary,  and  reasonable,"  before  it 
is  taxed. 

Trtisiee's  costs  are — 
Travel,         ....     $0-33, 
Attendance,  .         .         .        0-33,  for  each  day. 

Filing  answers,    .         .         .        0-50, 

and  unless  he  answers  on  the  return  day  of  the  writ,  he 
is  not  allowed  any  costs. 

COSTS  TAXED  IN  COURT  OF  COMMON  PLEAS. 
The  first  example  of  a  bill  of  costs  in  the  Court  of 
Common  Pleas  we  shall  give,  is  one  where  the  defend- 
ant does  not  appear  in  the  suit,  and  is  therefore  de- 
faulted. The  costs,  in  such  a  case,  are  lighter  than  in 
any  other. 

Plaintiff ' s  Costs  where  Defendant  is  Defaulted. 

Writ $1-65 

Service, 0-34 

Entry 1-25 

Travel 0-33 

Attendance,  (3  days,)        .         .         .  0-99 

$4-56 

The  Writ.  —  All  parties  prevailing  in  the  court  of 
common  pleas  are  allowed  an  attorney's  fee  of  one 
dollar  ;  and  where  the  plaintiff  prevails,  he  is  allowed 
fifty  cents  for  the  declaration  in  the  writ,  and  fifteen 
cents  for  the  writ  itself.     These  three  items  make 


TAXATION   OF   COSTS   IN   COMMON   PLEAS,  95 

$1"65,  which  the  clerk,  in  taxing  plaintiffs  costs,  al- 
ways places  under  the  head  of"  Writ,"  as  will  be  seen 
in  the  foregoing  bill  of  costs. 

The  Service.  —  The  amount  of  the  officer's  fee,  for 
the  service  of  a  writ,  must  of  course  depend  upon  the 
nature  and  extent  of  the  duties  performed  by  him.  For 
his  travel,  he  is  allowed  four  cents  a  mile  from  the 
place  of  service  to  the  court ;  and  if  the  distance  ex- 
ceeds fifty  miles,  only  one  cent  a  mile  is  allowed  for  all 
travel  exceeding  that  distance.  For  special  service  of 
the  writ,  by  attaching  property,  or  arresting  the  body, 
he  is  allowed  fifty  cents  for  each  person  on  whom  the 
writ  is  so  served.  Where  there  is  no  special  service  by 
attachment  or  arrest,  but  merely  a  summons  left  or 
read,  he  is  allowed  thirty  cents  for  each  person  upon 
whom  such  service  is  made.  The  fees  allowed  by  law 
to  the  officer  for  other  services,  are  stated  in  Part 
v.,  which  see. 

In  the  foregoing  bill  of  costs,  the  "  Service"  is  put 
down  thirty-four  cents,  which  includes  two  items  — 
thirty  cents  for  a  simple  service,  and  four  cents  for  one 
mile's  travel.  This  is  the  smallest  amount  ever  charged 
for  "  Service." 

Entry.  —  The  entry  of  an  action  is  sixty  cents  ; 
judgment,  forty  cents ;  appearance,  ten  cents,  and  de- 
fault, fifteen  cents ;  making  in  all  $r25,  which  is 
charged  as  fee  for  "  Entry." 

Travel.  —  The  fee  for  travel  is  thirty -three  cents  for 
every  ten  miles ;  but  no  party  is  allowed  for  travel  for 
more  than  eighty'  miles  out  and  home,  unless  he,  or 
some  agent  or  attorney  for  him,  shall  actually  travel 
more  than  forty  miles,  for  the  special  purpose  of  attend- 
ing the  court  in  such  cause;  in  which  case,  upon  affi- 
davit of  the  fact,  allowance  will  be  made,  in  the  dis- 
cretion of  the  court,  according  to  the  distance  that  is 
actually  travelled. 

It  is  customary  to  tax  thirty-three  cents  for  travel, 
let  the  distance  be  never  so  short.  If  the  distance  be 
more  than  ten  miles,  but  less  than  fifteen,  it  is  custom- 
ary to  charge  but  for  ten  miles;  if  more  than  fifteen, 
but  less  than  twenty,  for  twenty  miles,  &/C. 

Attendance.  —  The  fee  for  attendance  is  thirty-three 


99  TAXATION  OF  COSTS  IN  (X)MMON  FLEAS. 

cents  per  day.  Where  a  case  is  defaulted,  the  plaintiff 
can  charge  but  for  three  day's  attendance,  making 
ninety-nine  cents,  as  appears  in  the  foregoing  bill  of 
costs.  No  fees  for  attendance  are  allowed  in  any  action 
from  and  after  the  day  when  the  same  shall  be  non- 
suited, defaulted,  continued,  or  otherwise  finally  dis- 
posed of  by  the  court  for  that  term,  which  day  shall  be 
entered  on  the  docket. 

When  an  action  is  continued  by  the  court  for  ad- 
visement, or  under  reference  by  a  rule  of  court,  or  on 
account  of  the  absence  of  the  defendant  from  the 
Commonwealth,  the  prevailing  party  is  allowed  costs 
for  only  one  day's  attendance  and  his  travel,  at  every 
intermediate  term  ;  and,  at  the  term  when  the  opinion 
is  pronounced,  or  the  report  made,  or  proof  of  notice 
given,  for  his  attendance  subsequent  thereto. 

Where  a  case  is  put  upon  the  trial  list,  and  is  kept 
there  until  trial,  a  fee  for  attendance  is  ordinarily 
allowed  from  the  day  it  is  entered,  until  it  is  finally 
disposed  of. 

IVe  wilt  now  give  an  example  of  a  common  nonsuit, 
or  vfhere  the  defendant  prevails. 

Appearance, $010 

Travel, 0  33 

Attendance,  (as  may  be,  say  5  days,)         165 
Attorney's  fee,  .         .         .         .         100 

Taxing  costs,    .....         0-50 

$3-58 

If  witnesses  are  summoned  in  a  case  nonsuited,  and 
certify  to  their  attendance,  their  fees  are  allowed,  al- 
though the  case  may  not  go  to  a  jury. 

In  the  foregoing  bill  of  costs,  the  travel  and  attend- 
ance are  the  same  as  in  plaintiff's  bill.  "  Appearance" 
is  not  found  under  a  distinct  head  in  plaintiff's  bill  of 
costs,  but  is  included  in  the  "  Entry"  fee,  as  will  be 
seen  by  reference  to  the  subject  of  "  Entry."  So, 
attorney's  fee  in  plaintiff's  bill  is  included  in  the  charge 
for  '*  Writ,"  which  see.  The  clerk  usually  charges  fifty 
cents  for  taxing  costs,  as  appears  in  the  foregoing  bill. 

We  will  now  give  two  examples,  in  cases  tried  bffore 
a  jury,  —  one  where  plaintiff  prevails,  —  the  other  where 
defendant  prevails. 


TAXATION   OF    COSTS    IN   COMMON   PLEAS. 


97 


-s 


-  E 


defendant's    COSTS; 

Appearance,  .         .  $0-10 

f  Travel,        .         .  0-33 

<  Attendance,  (say 

I      15  days,)          .  4-95 

^Travel,        .         .  0-33 

<  Attendance,  (say 

I      10  days,)           .  3-30 

Attorney's  fee,         .  100 

Filing  2  papers,     .  0-40 

Issue,     .         .         .  0-50 

Verdict,         .         .  0-20 
Witness  fees : 
(Same  as  plaintiff's,) 

say,    .         .         .  O-40 

$16-51 


plaintiff's   COtTS. 

Writ,      .         .         .  $1-65 

Service,           .         .  0-34 

Entry,    .         .         .  1-25 

C  Travel,        .         .  0-33 

<  Attendance,  (say 

H  (f      50  days,)           .  16  50 

Continuance,         .  0-20 

.  C  Travel,        .         .  0-33 
c  ^  <  Attendance,  (say 

'^^(      10  days,)          .  3-30 

Filing  2  papers,    .  0*40 

Issue,     .         .         .  0-50 

Verdict,         .         .  0  20 

Witness  fees : 

A.  B.,  attendance  1 

day,  travel  4  miles,  1'16 

C.  D.,  attendance  4 

days,  tj-avel  6  miles,  424 

$30-40 

It  will  be  seen  that  travel  and  attendance  have  been 
charged  twice  in  the  foregoing  bills  of  costs  ;  the  reason 
is,  that  a  case  is  seldom,  if  ever,  tried  in  the  term  in 
which  it  is  entered,  but  is  continued  until  the  second 
term,  when  it  is  usually  heard  and  decided.  The  pre- 
vailing party  is,  therefore,  entitled  to  travel  and  attend- 
ance for  both  terms. 

The  items  in  italics  are  those  not  found  in  the  ex- 
amples given  of  bills  of  costs,  where  defendant  is  de- 
faulted or  plaintiff  nonsuited.     They  are: 

Continuance.  —  When  a  case  is  not  tried  during  the 
first  term,  and  it  seldom  is,  a  fee  is  charged  for  con- 
tinuing it  until  the  next  term,  and  so  on  from  term  to 
term,  until  it  is  finally  disposed  of.  By  the  Revised 
Statutes,  the  clerk  may  charge  twelve  cents  for  a 
"  Continuance,"  but  it  is  customary  to  charge  twenty, 
and  it  is  so  put  down  in  the  above  bill. 

Filing  papers. — Twenty  cents  is  paid  for  each 
paper  that  is  filed  in  any  case,  by  the  party  filing  it, 
and  if  he  prevails  in  the  suit,  it  is  taxed  in  his  bill  of 
costs. 

Issue.  — When  an  issue  of  law  or  fact  is  joined,  the 
attorney's  fee  is  increased  from  $1  to  $1  50;  and  this 
extra  fifty  cents  is  taxed  under  the  head  of  "  issue." 

L.  T.  9 


98     BILL   OF   COSTS   IN   THE   SUPREME   JUDICIAL   COURT. 

Verdict.  —  Fee  for  recording  verdict,  twenty  cents. 
Witness  fees.  —  The  fees  of  witnesses  are  one  dollar 
a  day,  and  four  cents  a  mile  for  travel  out  and  home. 

Summoning  witnesses.  —  The  price  of  the  subpoena 
is  ten  cents.  The  officer's  fee  is  ten  cents  for  each 
witness,  and  four  cents  a  mile  for  travel. 

The  foregoing  bills  of  costs  embrace  the  usual  items 
charged  i7i  ordinary  civil  suits  ;  but  there  may  be  various 
other  charges,  as  follows  : — 

Rule  to  Referee $0  50 

Rule  to  Auditor OoO 

Order  of  noiice  where  a  party  resides  out 

of  the  Commonwealth,.         .         .         .         100 
Expense  of  priming  do.,    .         .         .         .         3  50 
Commission  to  take  depositions,         .         .  1  00 
Receiving  and  reading  Referee's  or  Audit- 
or's Report, 100 

Trustee' s  fees.  —  A  trustee  appearing  the  first  term 
and  submitting  himself  to  be  examined  upon  oath,  is 
allowed  his  costs  for  travel  and  attendance,  and  such 
further  sum  as  the  court  shall  think  reasonable,  for  his 
counsel  fees  and  other  necessary  expenses.  Where  the 
trustee  is  discharged  within  five  days  after  his  appear- 
ance, it  is  usual  to  allow  a  counsel  fee  of  three  dollars; 
if  not  discharged  until  after  five  days,  then  a  counsel 
fee  of  one  dollar,  and  his  travel  and  attendance.  Fees 
are  allowed,  in  like  proportion,  where  he  is  charged  as 
trustee,  in  which  case  he  is  allowed  to  deduct  and  retain 
them  out  of  the  property  in  his  hands,  and  if  that  is  not 
sufficient,  then  to  recover  them  of  the  plaintiff.  If  he 
be  discharged  his  fees  are  to  be  paid  by  the  plaintiff, 
and  he  may  have  judgment  and  execution  therefor 
accordingly.  (R.  S.  c.  109,  §  49,  51.) 


BILL  OF  COSTS  IN  THE  SUPREME  JUDICIAL  COURT. 
With  few  exceptions,  the  fees  in  the  supreme  court 
are  the  same  as  in  the  common  pleas.     We  shall  only 
notice  the  exceptions  ;  they  are, — 

The  Attorney's  Fee. — In  the  court  of  common  pleas, 
where  a  case  is  defaulted,  the  Attorney's  Fee,  as  we 
have  seen,  is  $1  ;  in  the  supreme  court  it  is  §1.25.  In 
the  former  court,  where  an  issue  of  law  or  fact  is 
joined,  his  fees  are  §1.50;  in  the  latter,  they  are 
§2  50. 


ATTORNEYS,    QUALIFICATIONS   OF,    &C.  99 

In  the  bill  of  costs  for  the  plaintiff  in  the  court  of 
common  pleas,  it  is  usual,  as  we  have  seen,  to  include 
the  attorney's  fee  in  the  charge  for  the  "  Writ,"  and 
where  an  issue  of  law  or  fact  is  joined,  a  separate 
charge  of  fifty  cents  is  made  for  the  Issue.  In  the  bill 
of  costs  for  the  plaintiff  in  the  supreme  court,  it  is 
usual  to  make  a  separate  item  of  the  Attorney's  Fee. 
Thus,  "  Writ,"  sixty-five  cents ;  which  includes  the 
Writ,  fifteen  cents  ;  Entry  of  an  appearance,  ten  cents  ; 
Judgment,  forty  cents.  The  "  Attorney's  Fee,"  $1.25 
or  $2.50,  as  the  case  may  be,  is  set  dowji  under  a  dis- 
tinct head. 

For  further  particulars,  see  the  List  of  Fees  of 
Clerks,  in  Part  V. 


ATTORNEYS. QUALIFICATIONS    OF. WHO     CAN    BE    AN   AT- 
TORNEY.  LIABILITY    OF   ATTORNEYS    AND    SHERIFFS. 

Qualification-f  of  an  Attorney. — Any  citizen  of  tiiis  Commonwealtli,  of  the 
age  of  l\\'eniy-one  years,  and  of  good  moral  character,  wlio  shall  have  de- 
voted three  years  to  the  study  of  the  law,  in  the  office  of  some  attorney, 
within  this  state,  shall,  on  application  to  the  supreme  court,  or  court  of 
common  pleas,  be  admitted  to  prac'ise  as  an  attorney  in  any  court  of  this 
Commonwealth,  on  complying  with  the  other  requisitions  contained  in 
this  chapter.  (R.  S.  c.  88.) 

Any  person,  having  the  other  qualifications,  required  in  the  preceding 
section,  but  who  shall  not  have  studied  the  term  therein  prescribed,  may, 
on  the  recommendation  of  any  attorney  within  this  Commonwealth,  peti- 
tion the  supreme  court,  or  court  of  common  pleas,  to  be  examijied  for 
admission  as  an  attorney  in  said  courts,  whereupon  the  court  shall  assign 
gome  time  and  place  for  the  examination,  and  if  they  shall  thereupon  be 
satisfied  with  his  acquirements  and  qualifications,  he  shall  be  admitted,  in 
like  manner  as  if  he  had  studied  three  full  years,  (ib.) 

Every  person,  admitted  as  an  attorney  shall,  in  open  court,  take  and 
subscribe  the  oaths  to  support  the  constitution  of  the  United  States,  and  of 
this  Commonwealth,  and  the  oath  of  office,  (ib.) 

The  oath  of  office  shall  be  as  follows  : 

You  solemnly  swear,  that  you  will  conduct  yourself,  in  the  office  of  an 
attorney,  according  to  the  best  of  your  knowledge  and  discretion,  and  with 
all  good  fidelity,  as  well  to  the  courts  as  to  your  clients.  So  help  you 
God.  (»6.) 

Attorney  maybe  removed  for  malpractice,  Ifc. — Any  attorney  may  be  re 
moved  by  the  supreme  judicial  court,  or  the  court  of  common  plea.«,  for  any 
deceit,  malpractice,  or  other  gross  misconduct,  and  shall  more<iver  be 
liable  in  damages,  to  the  party  injured  thereby,  and  to  such  other  punish- 
ment as  may  be  provided  bylaw;  and  the  expenses  of  the  inquiry  and 
proceedings,  in  either  of  the  said  courts,  for  the  removal  of  any  atiorney, 
shall  be  paid  out  of  the  treasury  of  the  Commonwealth,  (ib.  c.  68  and  141.) 

Rlalpractices  of  Attorneys. — If  an  attorney,  in  the  conduct  of  a  suit,  com- 
mits an  act  of  negligence,  whereby  all  the  previous  steps  become  useless 
in  the  result,  he  cannot  recover  for  any  pan  of  the  Inisinos.s  done.  And 
whether  or  not,  in  such  case,  the  work  become  whuliy  useless  by  ilie  pluiti- 
tiff's  fault,  is  a  question  for  the  jury.  (-2  C.  M  and  R.  547.) 

An  attorney  is  bound  to  execute  the  busniess  entrusted  to  him,  with  a 
reasonable  degree  of  care,  skill,  and  despalcli.  If  the  client  bo  injured  by 
the  gross  fault,  negligence,  or  ignorance  of  the  attorney,  the  atiorney  is 
liable. 


100  PARTIES   MAY    MANAGE   THEIR   OWN    SUITS. 

If  an  attorney,  after  a  demand  made,  or  directions  given  to  remit,  neglect 
to  pay  over  money  collet-led  by  him,  ui  addition  to  the  common  liability  to 
his  client,  the  court  will  grant  a  rule  to  show  cause  why  an  attachment 
should  not  issue  against  him.  And,  in  some  instances,  the  court  will  order 
an  attorney  to  pay  costs  to  his  o\vn  client  for  neglect,  or  to  the  opposite 
party  for  vexatious  and  improper  conduct. 

When  an  attorney  is  charged,  by  affidavit,  with  any  fraud  or  malpractice, 
or  with  any  conduct  rendering  liim  unfit  for  his  profession,  the  court  will 
order  him  to  answer  the  matters  contamed  in  the  affidavit. 

Liability  of  flteriffi  who  neglect  to  pay  over  moneys  collected. — If  any  officer 
shall  unreasonably  neglect  to  pay  any  money,  collecled  by  him  on  execu- 
tion, when  demanded  by  the  creditor  therein,  he  shall  forfeit  and  pay  to  the 
creditor  five  times  the  lawful  interest  of  the  money,  from  the  lime  of  the  de- 
mand unlil  it  is  paid.  {ib.  c.  97.) 

Sherifls  are  responsible  for  the  official  misconduct  of  their  deputies,  (ib. 
C.  14.) 

Parties  may  manage  their  own  suits. — Parties  may  manage,  prosecnte  or 
defend  their  own  suits,  personally,  and  by  such  counsel  or  attorneys  as 
they  may  see  fit  to  engage,  but  no  more  than  two  persons  for  each  party 
shall,  without  permission  of  the  court,  be  allowed  to  manage  any  case 
therein,  {ib.  c.  8S.) 

Any  person,  of  good  moral  character,  although  not  admitted  an  attorney, 
may  manage,  prosecute  or  defend  a  suit,  for  any  other  person,  provided  he 
is  specially  authorized  for  thai  purp^ise,  by  ihe  party  for  whom  he  appears, 
in  writing,  or  by  personal  nomination  in  open  court,  {ib.) 

Every  attorney,  who  shall  be  lawfully  possessed  of  an  execution,  in 
favor  of  his  client,  shall  have  alien  thereon,  for  the  amount  of  his  fees  and 
disbursements  in  ihe  cause,  provided,  that  this  shall  not  prevent  the  pay- 
ment of  ihe  execution  to  the  judgment  creditor^  by  any  officer  or  ulber 
person,  without  notice  of  (he  lien.   (i4.J 


PART    V, 
LEGAL    FEES 

OF 

ATTORNEYS  AND   LAW   OFFICEKS 

OF   THE   STATE   OF  MASSACHUSETTS. 


FEES    OF   ATTORNEYS. 

All  parties,  recovering  costs  in  civil  causes,  shall  be  allowed  as  follows  : 
For  an  atlorney's  fee  in  the  supreme  judicial  court,  in  all  cases,  in 

which  an  issue  in  law  or  fact  is  joined,  -  -  .  $2-50 

In  all  other  cases,  .--,,-  i-2o 
For  an  attorney's  fee  in  the  court  of  common  pleas,  when  an  issue 

in  law  or  fact  is  joined,  .  -  .  .  .      X-.50 

In  all  other  cases,      -  .  -  .  .  .      i.oo 

For  the   declaration  in  each  writ,  in  any  justice's  court,  or  other 

court  whatever,      ------      050 

For  atiendance  and  travel,  in  either  of  the  courts  before  mentioned, 

or  before  a  justice  of  the  peace,  police  court,  or  any  other  court  ot^ 

record,  for  each  da) 's  attendance,       -  -  -  .     0  33 

For  every  ten  miles'  travel,      -...!.»     0'33 


FEES  OF  JUSTICE  OF  THE  PEACE.         101 


FEES  OF  JUSTICE  OF  THE  PEACE. 

For  every  blank  writ  of  altachraent  and  summons  thereon,  or  origi- 
nal summons,  ......  $;0-17 

For  every  subpcena,  for  one  or  more  witnesses,  ...     O'lO 
For  the  entry  of  an  action,  or  filing  a  complaint  in  civil  causes, 
including  filing  of  papers,  examining,  allowing  and  taxing  ihe  bill 
of  costs,  and  entering  up  the  judgment  iind  recording  the  same,    -     0  61 
For  the  copy  of  a  record,  or  other  paper,  if  less  than  one  page,  -     0  10 

The  word  page  means  two  hundred  and  twenty-four  words. 
If  more  than  one  page,  at  the  rate  of  12  cents  a  page,  -  -     012 

For  a  writ  of  execution,  .....     0'25 

Taking  a  recognizance  to  prosecute  an  appeal,  including  principal 
and  surety,  -  -  .  .  .  .      0-20 

Taking  a  deposition  in  any  case  required  by  law,  -  .     0-50 

For  writing  the  deposition  and  caption,  at  the  rate  of  12  cents  a  page,     012 
For  the  notice  to  the  adverse  party,         ....     o  20 

The  justice  shall  certify  on  the  deposition  his  own  fees,  and  those 

of  the  deponent. 
For  administering  an  oath,  in  all  cases,  in  which  it  is  required  by 
law,  except  on  any  trial  on  examination  before  himself,  whether 
it  is  administered  to  one  or  more  persons,  at  the  same  lime,  -      0-20 

Taking  the  acknowledgment  of  a  deed,  whether  by  one  or  more 
grantors,  if  done  at  the  same  time,       ....      017 

Granting  a  warrant  of  appraisement  of  the  estates  of  deceased  per- 
sons, and  of  strays,  and  forfeited  goods,  and  in  all  other  cases,      -      0'20 
Receiving  a  complaint  and  issuing  a  warrant  in  criminal  cases,         -      050 
Entering  a  complaint  in  criminal  prosecutions,  rendering  judgment 
and  recording  the  same,  examining,  allowing  and  taxing  the  costs 
and  filing  the  papers,  .....      0-75 

For '.he  trial  of  an  issue,  .  .  -  .  -      0'50 

For  a  mittimus  for  the  commitment  of  any  person  on  a  criminal 
accusation,  ......     0-25 

For  certifying  and  solemnizing  a  marriage,  ...      1-25 

For  taking  and  recording  a  recognizance,  ...     0'50 

And  for  all  other  services  under  the  provisions  of  c.  118,  R.  S. 
relating  to  recognizance  for  debt,  the  same  as  for  like  services 
in  other  cases. 
For  travel,  in  the  performance  of  any  official  duly,  at  the  rate  of  50 

cents,  for  every  ten  miles,  in  going  and  returning,  -  .     0'50 

Except  that  only  one  travel  is  allowed  for  returning  papers  to  the 
supreme  judicial  court  or  court  of  common  pleas  at  the  same 
term.     And,  in  all  cases,  where  the  attendance  of  two  or  more 
justices  is  required,  each  of  them  shall  be  entitled  to  the  fees, 
prescribed  for  all  services  rendered  by  him  personally. 
Travelhng  fees,  at  the  rate  of  fifty  cents  for  every  ten  miles  going 

and  returning,         ...---      0'50 
The  fees  fur  hearing  and  determining  whether  one  be  an  idiot  and 
not  furiously  mad,  are  the  same  as  are  allowed  by  law  for  like 
services  in  criminal  proceedings,  to  be  taxed,  allowed,  and  paid 
in  the  same  manner. 
Fee  for  making  out  the  agreement  of  submission,  and  certiiying  the 
acknowledgment  thereof,      .....     0-40 

The  fees,  for  the  services  to  be  performed  where  a  prisoner  is  dis- 
charged by  two  justices  of  the  peace,  shall  be  as  follows  : 
To  the  justice  who  issues  the  citation  to  the  creditor,  -  -     0  50 

Toeachof  the  justices  before  whom  the  examination  is  had,  forevery 

day  employed  therein,  .....      i-oo 

No  fee  shall  be  allowed  to  any  justice  of  the  peace  for  any  -w-ar- 
rant  issued  by  him,  returnable  before  said  court,  unless  it  shall 
appeal  to  the  court  that  there  was  just  and  reasonable  cause 
for  issuing  the  warrant. 

Justices'  writs  may  be  directed  loan  officer  in  any  county,  for  the  purpose 
of  causing  attachment;  provided  the  expense  of  serving  such  writ  shall 
not  be  taxed  against  the  defendant  for  more  than  $1-50.  (Laws  1S3S,  c.  121.) 

9* 


102   sheriff's  fees. — ^fees  of  clerks  of  courts, 

FEES   IN   chancery. 
Each  order  of  notice,-  .....  ^-oo 

Clerk's  fees  on  do.      -.-...     2  00 
Warrant,      --.....     2'00 

Clerk's  fees  on  do.      -  -  -  .  .  .     2'00 

Each  meeting,  »  -  .  ,  .  .^     7-00 

Unless  there  are  two  or  more  meetings  on  the  same  day,  when 

the  fees  are  equally  proportioned  among  them. 
Blanks,         ----...      1.00 
Record,  at  the  discretion  of  the  commissioner,  say  -  -     1-00 

Messenger's  fees — $2-00  for  service  of  warrant ;  7  cents   for  each 
written  or  printed  notice  to  creditors,  and  any  further  sum  for  the 
additional  trouble  and  responsibility,  at  the  discretion  of  the  com- 
missioner. 
Assignee's  fees. — Varj-ing  with  the  amount  of  labor  and  responsibility. 

FEES    OF    CLERKS    OF    THE    JUDICIAL    CO  CRTS,    FOR   THEIR 
SERVICES    AS    CLERKS    OF  THE   COUNTY    COMMISSIONERS. 
For  the  warrant  for  a  county  tax,  ....     0-20 

For  a  warrant  to  lay  out  or  alter  a  road,  ...      0-20 

For  recording  reports  concerning  highways,  and  all  other  proceed, 
ings,  required  to  be  recorded,  and  also   for  copies  of  records  and 
other  papers,  at  the  rate  of  12  cents  a  page,        ...     0*12 
For  all  other  services,  the  same  fees  as  arc  allowed  in  like  cases, 
in  the  supreme  judicial  court,  or  court  of  common  pleas. 

FEES  OF  CLERKS  OF  SUPREME  COURT,  AND  COURT  OF 

COMMON  PLEAS. 

For  the  entry  of  an  action  or  complaint,  in  any  civil  suit  or  proceed- 
ing, or  the  entr>'  of  a  petition  for  the  sale  orpartitioH  of  real  estate,  $0'60 
Entry  of  an  indictment,  presentment,  complaint  or  information,  in~ 
eluding  the  recording  of  the  judgment,  taxing  the  costs,  and  filing 
the  papers,  -.....,     0'€3 

Entry  of  an  appearance,  .....     0-19 

Entering  a  rule  of  reference  to  arbitrators,  .  .  ,     0--15 

For  every  continuance  of  a  cause,  ....      0-]'2 

For  opeiiing  and  hling  a  deposition,        .  .  -     O'lO 

Taking  a  recognizance  of  any  kind,  ....  0'20 
For  every  nonsuit,  or  dismission  of  an  action,  confession  of  judg- 
ment, default,  or  joinder  in  demurrer,  ...  0-1.5 
For  entering  and  recording  a  verdict,  or  report  of  referees,  -  0-20 
Enlering  and  recording  a  judgment,  in  all  civil  cases,  .  .  0-40 
Entering  acknowledgment  of  satisfaction  of  a  judgment,  .  .  0-12 
Entering  an  appeal,  eiiher  in  a  civil  or  criminal  case,  including  the 

recognizance,  if  any  is  taken,  ....     0-20 

For  every  writ  of  execution,  ^vhether  in  real  or  personal  suits  or 

proceedings,  ....,,     0'25 

Every  wrarrant  in  any  criminal  suit  or  proceeding,  -  >     0*20 

Every  blank  writ  of  attachment  and  summons  thereon,  and  every 

original  summons,  ..--..     0'15 
Every  w^rit  of  review,  scire  facias,  certiorari,  habeas  corpus,  or  other 

special  w^rit,  .  .  .  .^  .  ,     o-40 

Every  subprena,  for  one  or  more  witnesses,         ...     0-10 
Every  venire  facias  for  jurors,  .  .  .  ,     0-06 

Every  writ  not  before  mentioned,  ....     0'40 

For  examining  and  casting  the  grand  jurors'   accounts,  and  order 

thereon,    .----..     0-30 
Examining  any  other  account,  .  .  ,  .     O-OS 

For  the  certificate  of  the  proof  of  a  deed  in  court,-  .  .     020 

For  copies  of  all  papers,  containing  less  than  one  page,      .  .     0-10 

Containing  more  than  one  page,  at  the  rate  of  12  cents  a  page,  .     O.Vi 

For  recording  proceeding;!  in  suits  in  equity,  such  ct'mpen*ation  as 
the  court  shall  dfcin  reasonalile,  having  regard  to  the  fees  estab- 
lished by  law,  for  services  of  a  similar  naiure. 
The  said  clerks  shall  account  for  all  the  said  fees,  received  fortheir 
services,  with  the  comity  treasurer  of  their  respective  counties.. 


sheriff's  fees.  103 


SHERIFFS   FEES. 

For  the  service  of  an  original  summons,  or  a  ncire  facias,*  either  by 
reading  the  same,  or  by  leaving  a  copy,  30  cents  ;  and  if  served  on  more 
than  one  defendant,  30  cents  for  each  defendant. 

For  the  service  of  a  capiat,*  or  of  an  attachment  -wnh  summons,  30  cents  for 
each  defendant  on  whom  it  is  served,  and  if  the  officer,  by  the  direction  of 
the  plaintifi"or  his  attorney,  shall  make  a  special  service  of  such  writ, 
either  by  aitaching  properly,  or  arresting  the  body,  he  shall  be  entitled  to 
50  cents  for  each  defendant  on  whom  the  writ  is  so  served. 

For  a  copy  of  any  precept,*  when  required  by  law,  or  when  furnished 
to  any  party  at  his  request,  at  the  rate  of  12  cents  a  page. 

For  taking  bail,  and  lurnisliiHg  and  writing  the  bail  bond,  20  cents,  to  be 
paid  by  the  defendant,  and  taxed  in  his  bill  of  costs,  if  he  shall  prevail. 

For  serving  a  warrant,*  30  cent*  for  each  person  on  whom  it  is  served. 

Summoning  witnesses,  either  in  civil  or  criminal  cases^  10  cents  for  each 
witness,  and  in  criminal  cases,  the  court  may,  under  special  circumstances, 
allow  such  further  sum  as  they  sliall  >udge  reasonable. 

Dispersing  venires  for  jurors,  treasurers'  warrants,  and  proclamations  of 
all  kinds,  eight  cents  each,  without  any  allowance  for  travel. 

Serving  executions  in  personal  actions,  and  collecting  damages  or  costs 
on  any  execution,  warrant  of  distress  or  other  likfij«)cess,  for  any  sum 
not  exceeding  100  dollars,  4  cents  for  every  doIla^PW  above  100  dollars, 
and  not  exceeding  200  dollars,  2  cents  for  every  dollar;  and  for  all  above 
200  dollars,  1  cent  lor  every  dollar. 

Serving  a  writ  of  seizin*  or  possession  in,  real  actions,  1  dollar  and  10 
cents,  and  if  served  on  more  than  one  piece  of  land,  75  cents  for  each  piece 
after  the  first. 

Serving  an  execution  upon  a  judgment  for  partition,  or  for  assignment  of 
dower,  1  dollar  a  day. 

Travel  for  the  service  of  all  original  writs,  executions,  warrants,  suhpanas. 
and  other  like  processes,  4  cents  a  mile,  to  be  computed  from  the  place  of  ser- 
vice to  the  court,  or  place  of  return  ;  only  one  travel  to  be  allowed  for  the 
ser\-lce  of  any  one  precept,  and  if  the  same  precept  be  served  on  more  than 
one  person,  the  travel  shall  be  computed  from  the  most  remote  place  of 
service,  wiih  sueh  further  travel  as  may  have  been  necessary  in  serving  it. 

If  the  distance  from  the  place  of  service  to  the  place  of  return  shall  exceed 
fifty  miles,  only  1  cent  a  mile  shall  be  allowed  for  all  travel  exceeding  that 
distance. 

Whilst  attending  any  court  of  record,  or  at  any  meeting  of  the  county 
commissioners,  3  dollars  a  day,  to  be  paid  oiH  of  the  county  treasury  ;  and 
in  every  county,  where  there  is  more  than  one  shire  town,  the  lees  shall  be 
4  dollars  a  day,  except  at  the  court  or  meeting,  held  in  the  town  nearest 
the  residence  of  the  sheriff,  or  in  which  he  resides. 

*  Scire  Facias  is  a  w^rit  to  revive  judgment,  and  demanding  of  the  de- 
fendant why  execution  should  not  issue  on  it.  Capias  is  a  writ  authorizing 
the  defendant's  arrest.  Precept  is  a  command  or  order  in  writing.  Warrant 
is  a  precept  authorizing  the  seizure  of  an  offender.  &c.  Seizin  is  a  writ 
for  taking  possession  of  Real  Estate.  Certiorari  is  a  writ  directing  the 
proceedings  or  record  of  a  cause  to  be  brought  before  a  higher  court. 
Citation  is  a  summons  to  appear.  Declaration  (in  a  writ)  is  a  shewing,  in 
writinir,  of  the  cause  of  the  complaint  of  the  plaintiff,  in  an  action  against 
the  defendant,  wherein  the  party  is  supposed  to  have  received  some  wrong. 
Default  is  commonly  taken  for  non-appearance  at  a  day  assigned. 

The  Statutes  require  that  the  original  writ,  in  all  civil  actions,  shall  be 
a  Summons,  or  a  Capias  and  Attachment, 

The  Original  Summons  docs  not  attach  properly,  but  simply  directs  the 
offici'r  to  sntnmon  the  defendant  to  appear. 

The  Capias, — and  Capias  and  Attachment  are  precisely  the  same  in 
form,  the  precept  being  "  to  attach  the  goods  and  estate  of  the  defendant, 
and  tor  want  thereof,  to  take  the  body." 

Sealed  writs  can  be  obtained  of  the  clerk  of  the  Justices  Court  in  Bos- 
ton, and  in  oiher  places  of  Justices  of  the  Peace,  or  of  the  Clerks  of  the 
Court  of  ComiTKm  Pleas,  for  17  cents  a  copy.  Where  blank  copies  are 
required,  they  may  be  obtained  of  stationers  for  about  2  cents  a  copy. 
The  Statute  allows  the  justice  of  the  peace  or  attorney  50  cents  for  iho 
Declaration  (or  filling  out.) 


104    FEES   OF  CONSTABLES,    JUROKS,   WITNESSES,    &C. 

To  every  deputy  sheriff,  who  shall  attend  said  courts  or  meetings  by 
their  order,  2  dollars  a  day,  to  be  paid  in  the  manner  aforesaid. 

And  no  sheriff,  deputy  sheriff,  coroner  or  constable,  shall  be  entitled  to 
any  fees  for  attendance  as  a  witness  in  any  criminal  case,  whilst  he  is  paid 
for  attending  as  an  officer  of  the  same  court,  or  on  the  same  examination 
or  trial. 

To  the  sheriff,  for  returning  the  votes  for  governor,  lieutenant  governor, 
counsellors  and  senators,  to  tlie  secretary's  office,  12  cents  a  mile,  to  be 
computed  from  the  place  of  his  abode  to  the  secretary's  office,  and  to  be 
paid  out  of  the  treasury  of  the  Commonwealth,  and  only  one  travel  shall 
be  allowed  forthe  whole. 

constable's    FEES. 

For  all  services  performed  by  them,  the  same  fees  as  are  allowed  to 
sheriffs  for  the  like  services,  unless  when  other  provision  is  expressly 
made  therefor. 

For  attending  any  court  of  record,  by  order  of  the  court,  and  for  any  ser- 
vices performed  there,  the  same  fees  as  are  allowed  to  deputy  sheriffs,  in 
like  cases. 

For  serving  a  venire,  25  cents,  and  for  travel  to  the  place  of  return,  at  the 
rate  of  4  cents  a  miflhoibe  paid  out  of  the  county  treasury. 

For  summoning  tW^urors  upon  a  coroner's  inquest,  and  attendance 
thereon,  at  the  rale  of  90  cents  a  day,  to  be  paid  out  of  the  county  treasury. 

For  citing  creditor  to  appear  at  debtor's  examination,  30  cents. 

All  travelling  fees  and  fees  for  the  service  of  writs  or  precepts,  of  which 
the  sheriff  or  other  officer  is  required  to  make  a  return,  shall  be  indorsed  on 
the  writ,  or  they  shall  not  be  allowed.  (R.  S.,  c.  122,  §  9.) 

FEES   OF   JURORS,    WITNESSES,     APPRAISERS,    COMMISSION- 
ERS   AND   OTHERS. 

To  each  person  attending  as  a  grand  juror  or  traverse  juror,  in  any  court, 
1  dollar  and  75  cents  a  day  for  his  attendance,  and  8  cents  a  mile  for  his 
travel  out  and  home ;  and  to  each  person  attending  as  a  juror,  before  a 
sheriff,  or  coroner,  or  on  any  other  occasion  prescribed  by  law,  1  dollar  and 
25  cents  a  day  for  his  attendance,  and  6  cents  a  mile  for  his  trav^el  out  and 
home. 

To  each  person,  attending  as  a  %vitness,  in  any  civil  or  criminal  cause, 
in  the  supreme  judicial  court,  court  of  common  pleas,  or  municipal  court  of 
the  city  of  Boston,  or  before  county  commissioners,  and  juries  for  assess* 
ment  of  damages,  in  certain  cases,  1  dollar  a  day,  and  for  bis  attendance 
before  a  justice  of  the  peace,  or  before  referees  or  arbitrators,  or  on  any 
other  occasion,  50  cents  a  day,  and  in  all  cases  4  cents  a  mile  for  his 
travel  out  and  home  ;  and  the  witness  shall  ceitify  in  writing  the  amount 
of  his  travel  and  attendance.* 

To  all  appraisers  of  the  estate  of  deceased  persons,  appraisers  of  real 
estate  taken  in  execution,  persons  appointed  under  any  legal  process  for 
assigning  dower,  or  for  makitig  partition  of  real  estates,  sheriffs'  aid  In 
criminal  cases,  and  all  other  private  persons,  performing  any  like  service 
required  by  law,  or  in  the  execution  of  any  legal  process,  when  no  express 
provision  is  made  forthe  compensation  therefor,]  dollar  a  day  each  for 
their  services,  and  4  cents  a  mile  for  travel  out  and  home. 

FEES    FOR    MARRIAGES. 

To  the  town  clerk,  for  publishing  the  banns  of  matrimony,  recording  the 
same,  giving  a  certificate  therofj  and  recording  the  marriage  upon  re- 
ceiving the  minister's  or  justice's  certificate  thereof,  50  cents,  to  be  paid  on 
delivering  the  certificate  of  publishing  the  banns. 

To  every  minister  or  justice  of  the  peace,  who  shall  lawfully  solemnize 
a  marriage,  and  certify  the  same,  1  dollar  and  25  cents. 

*  Witnesses  are  uot  obliged  to  attend  unless  fees  are  tendered  to  them. 


FEES    OF   REGISTERS   OF   DEEDS    fc   NOTARIES   PUBLIC.    105 


TOWN    CLERK  S   FEES. 

For  recording  births  and  deaths,  8  cents  each. 

For  a  cenifii-ate  of  a  birth  or  death,  10  cents. 

For  copies  of  town  records,  and  other  documents,  furnished  to  any  per- 
son at  his  request,  if  containing  less  than  one  page,  10  cents,  and  if  con- 
taining more,  at  the  rate  of  12  cents  a  page. 

FEES   IN   THE   OFFICE   OF   THE   SECRETARY   OF   STATE. 

For  a  copy  of  any  resolve  or  order  of  the  general  court,  or  of  the  gover- 
nor and  council,  of  a  private  or  local  nature,  furnished  to  any  private 
person,  60  cents. 

For  copies  of  all  other  papers  so  furnished,  at  the  rate  of  12  cents  a  page. 

The  secretary  shall  keep  an  account  of  all  fees  received  by  him,  and 
shall  exhibit  a  quarteily  return  thereof,  under  oath,  to  the  governor  and 
council  ;  and  the  amount  so  received  sltall  be  deducted  from  his  salary,  and 
[o]  warrant  shall  be  issued  for  the  balance. 

FEES    OF   THE   REGISTER   OF  DEEDS. 

For  entering  and  recording  a  deed,  or  other  paper,  aj^M^rtifying  the  same 
on  the  original,  17  cents,  and  if  it  contain  more  tt^^^Vp^ge,  at  the  rate 
of  14  cents,  for  every  page,  after  the  first ;  the  saifll^^o  be  paid,  when 
the  instrument  is  left  to  be  recorded. 

For  nil  copies,  at  the  rate  of  14  cents  a  page.  (A  page  contains  224 
words.) 

For  entering  in  the  margin  a  discharge  of  a  mortgage,  12  cents. 

Every  Register  of  Deeds  shall  keep  a  book,  and  shall  enter  therein  all 
deeds  and  other  instruments  left  lo  be  recorded,  in  the  order  in  which  they 
are  received,  noting  the  day,  hour  and  minute  of  reception,  and  other  par- 
ticulars, and  every  instrument  shall  be  considered  as  recorded  at  the  time 
so  noted. 

Regi-ittrs  of  Deeds  are  required  to  make  yearly  returns  to  the  Secretary 
of  the  Commonwealth  of  the  whole  number  of  deeds  and  other  instruments 
recorded  by  them,  the  whole  amount  of  fees  received  by  them  for  record- 
ing the  same  ;  the  amount  paid  into  the  treasury  of  the  county  ;  the  number 
of  legal  pages  covered  by  the  registry  of  said  deeds  and  other  instruments, 
and  The  expenses  of  their  respective  offices,  over  and  above  what  is  paid 
by  the  county.  (Laws  1836,  c.  241.)  The  penalty  for  neglect  of  registers  of 
deeds  to  make  returns  is  fifty  dollars   (76.  1847,  c.  282.) 

Every  register  of  deeds  is  required  to  keep  two  sets  of  indexes,  and  he 
shall,  within  twenty-four  hours  after  any  deed  or  instrument,  (which  he 
is  by  law  required  lo  record,  shall  have  been  left  for  record,)  cause  the 
name  of  each  and  every  grantor,  grantee,  or  other  party,  to  be  entered  at 
length  and  alpliabelically  in  its  appropriate  index,  &c.  (lb.  1845,  c.  205. 

He  is  also  required  to  record,  in  a  fair  and  legible  handwriting,  all 
deeds  and  other  instruments,  in  successive  lines,  upon  the  pages  of  the 
record  book  ;  and  interlineations  and  erasures  must  be  noted  before  attest- 
ation by  register.  (lb.  1844,  c.  104.) 

[Note. — It  is  here  proper  to  state  the  fact,  not  generally  known,  that  since 
the  enaciment  of  the  law  establishing  the  fees  of  the  Regislers  of  Deeds  in 
this  Commonwealth,  certain  additional  duiies  have,  at  the  difierent  sessions 
of  the  Legislature,  been  imposed  upon  and  required  of  iliem,  for  which  no 
compensation  has  been  provided,  and  for  which,  of  course,  no  person  will 
object  to  paying  a  reasonable  additional  charge.] 

FEES    OF   NOTARIES    PUBLIC. 

The  fees  of  notaries  public,  for  the  services  hereafter  specified,  shall  be 
as  follows,  to  wit ;  for  every  protest  for  the  non-acceptance  or  non-pay- 
ment of  a  hill  of  exchange,  order,  draft,  or  check,  the  amount  whereof  is 
five  hundred  dollars,  or  upward.^,  or  for  the  non-payment  of  a  promissory 
note  for  the  like  amount,  1  dollar  ;  for  recording  the  same,  50  cents  ;  for 
every  protest  for  the  non-acceptance  or  non-payment  of  a  bill  of  exchange, 
order,  draft,  or  check,  the  amount  whereof  is  less  than  five  hundred  dol- 


106     REQUIREMENTS    OF   PUBLIC   OFFICERS. APPENDIX. 

lars,  or  for  the  non-payment  of  a  promissory  note  for  the  like  amount,  50 
cents  J  for  recording  the  same,  50  cents  ;  for  noting  the  non-acceptance  or 
non-payment  of  a  bill  of  exchange,  order,  draft,  or  check,  or  the  non-pay- 
ment of  a  promissory  note,  75  cents  ;  for  each  notice  of  the  non-acceptance 
or  non-payment  of  any  bill,  order,  draft,  check,  or  note,  given  to  any  party 
liable   for  the  payment  thereof,  25  cent»:  provided,  that  the  whole  cost  of 

Erotest,  includnig  all  necessary  notices,  and  the  record  thereof,  when  the 
ill,  order,  draft,  check,  or  note  is  of  the  amount  of  five  hundred  dollars  or 
upwards,  shall  in  no  case  exceed  2  dollars  ;  and  when  the  amount  thereof  is 
less  than  five  hundred  dollars,  the  whole  cost  shall  not  exceed  1  dollar  and 
50  cents  ;  and  the  whole  cost  of  noiiner,  including  recording  and  all  notices, 
shall  in  no  case  exceed  1  dollar  and25  cents.  (Laws  1839,  c.  93.) 

KEQUIREMENTS   OF  PUBLIC   OFFICERS,    AND    PENALTY   FOR 
EXTORTION. 


Each  one  of  the  officers  before  mentioned,  who  keeps  a  public  office, 
shall  always  keep  hung  up  in  some  conspicuous  and  convenient  place  in 
his  office,  a  printed  or  written  list  of  the  fees,  so  far  as  they  relate  to  him. 

Every  officer,  uoon  receiving  any  fees  for  any  official  duly  or  service, 
shall,  if  required  ^^1^  person  paying  the  same,  make  out  in  writing  a 
particular  accou^^^^kch  fees,  specifying  for  what  they  respectively 
accrued  ;  and  if  h^MKes  or  neglects  so  to  do,  he  shall  forfeit,  to  the 
party  paying  the  fees,  three  times  the  amount  so  paid,  to  berecovered  in  an 
action  on  the  case. 

If  any  officer  shall  wilfully  and  corruptly  demand  and  receive,  for  any 
official  duly  or  service,  any  greater  fee  than  is  allowed  by  law,  he  shall 
forfeit  thirty  dollars  for  every  such  offence,  which  sum  may  be  recovered 
for  the  use  of  the  Commonwealth,  on  indictment  in  any  court  proper  to  try 
the  same,  or  it  may  be  recovered  in  an  action  of  debt,  for  the  use  of  any  person 
who  shall  sue  therefor ;  but  no  such  indictment  or  action  shall  be  commenced, 
unless  within  one  year  after  the  committing  of  the  offence. 

All  fees  and  costs,  for  services  and  proceedings  in  the  municipal  court  of 
the  city  of  Boston,  shall  be  the  same,  as  are  prescribed,  in  like  cases,  in  the 
court  of  common  pleas  ;  and  all  such  fees  and  costs,  in  any  police  court,  or 
other  court  exercising  the  jurisdiction  of  a  justice  of  the  peace,  shall  be  the 
same  as  are  prescribed  in  like  cases  before  justices  of  the  peace. 

In  all  cases,  not  expressly  provided  for  by  law,  the  fees  of  all  public 
officers,  for  any  official  duty  or  service,  shall  be  at  the  same  rate  as  those 
prescribed  in  this  chapter  for  the  like  services. 

The  word  "  page,"  when  used  as  the  measure  of  computation,  shall 
mean  tivo  hundred  and  twenty-four  words.  (Revised  Statutes,  c.  H2.) 


APPENDIX. 


The  following  Rates  of  Compensation  were  adopt- 
ed a  few  years  ago  by  the  Suffolk  Bar,  and  though  not 
at  present  obligatory,  are  still  adhered  to  by  many 
Attorneys.  The  charges  differ,  in  some  instances, 
from  the  Statute  fees,  which  can  be  seen  by  referring 
to  the  article  on  Taxation  of  Costs,  and  the  "  Legal 
Fees  of  Attorneys,  and  other  law  officers." 


APPENDIX. attorney's   FEES.  107 


We,  the  subscribers,  members  of  the  bar  in  the  county  of  Suffolk,  estab- 
lish the  following  rates  of  compensation  anil  fees  as  the  lowest  which  ^ve 
can  reasonably  and  honoralily  receive  ;  and  we  bind  ourselves  not  to  re- 
ceive less  fees  or  compensation  than  are  herein  expressed,  nor  any  com- 
mutation or  substitute  therefor,  viz. 

Advtce.  or  eomtUttUion.  P'or  advising,  when  the  property  in  dispute  ex- 
ceeds 100  dollars,  and  does  not  exceed  500  dollars,  not  less  than  $4  ;  for  ad- 
vising when  the  property  exceeds  500  dollars,  not  less  than  $5.     . 

Drafting  of  legal  instrumints.  The  compensations  in  these  cases  do  not 
admit  of  any  precise  rule.  The  service  to  be  compensated  is  compounded 
of  professional  advice  and  knowledge,  and  the  labor  of  applying  them  in 
writing  to  each  particular  case. 

Letters  before  suit.  For  a  letter  demanding  payment,  under  500  dollars, 
$2  ;  above  500  dollars,  $3. 

Writs,  ^c.  aduifing  and  commencing  the  action.  Where  the  demand  or 
cause  of  action  does  not  exceed  100  dollars,  $.3  ;  where  the  demand  orcause 
of  action  exceeds  100  dollars,  and  not  500  dollars,  $4  ;  where  the  demand 
or  cause  of  action  exceeds  500  dollars,  $5. 

Trustee  Vroress,  advising,  ((c.  One  dollar  in  addition  to  each  of  the  sums 
chargeable  as  above  for  common  writs,  thai  is,  fouj^^^and  six  dollars, 
instead  of  three,  four  and  five.  ^^^^B 

These  charges  are  to  be  made  when  the  action  ii^^^^niefore  entry,  and 
are  to  be  paid  together  with  the  sheriff's  fees.        ^^^^ 

In  addition  to  these  charges,  the  plaintiff's  attorney  or  counsellor  will 
charge  his  fees  for  advice,  if  the  case  be  such  as  to  authorize  such  charge 
to  the  plainiiff. 

Court  of  Common  Pleas.  For  plaintiff's  counsel  or  attorney.  If  he  prevails, 
the  counsel  or  attorney  is  to  charge  the  plaintiff  with  the  bill  of  costs,  and 
give  him  credit  for  it,  if  it  be  received  from  the  defendant,  or  on  execution. 

He  is  also  to  charge  the  fees  for  arguing  the  cause,  if  argued  either  to 
the  court  or  jury. 

If  the  plaintiff  does  not  prevail  in  the  suit,  his  counsel  or  attoniey  is  to 
charge  the  writ  according  to  the  rales  before  slated,  and  all  sums  of  money 
paid  for  the  plainlilfin  carrying  on  the  suit.  He  is  also  to  charge  a  term  fee 
for  each  term.  In  cnses  not  exceeding  100  dollars,  »-3  ;  exceeding  100  dol- 
lars and  not  exceeding  500  dollars,  $4  ;  exceeding  500  dollars,  %5. 

If  the  cause  be  argued  to  the  court  or  jury,  the  arguing  fee  is  to  be  charg- 
ed for  the  term  at  which  the  argument  took  place,  instead  of  the  term  fee. 

In  cases  where  several  actions  are  brought  on  one  and  the  same  title,  or 
on  the  same  policy  of  assurance,  or  other  like  cases,  in  which  all  are  gov- 
erned by  the  decision  of  one,  or  more,  either  term  fees  or  half  term  fees 
may  be  charged  at  discretion,  in  such  actions  as  are  not  tried  or  argued. 

For  defendant's  cjmnscl  or  attorney.  Where  the  defendant  prevails,  his 
counsel  or  attorney  is  to  charge  the  bill  of  costs  recovered  against  the  plain- 
tiff, and  in  addition  thereto,  term  fees  as  before  staled,  excepting  the  term 
when  the  cause  is  argued  to  the  court  or  jury,  w^hen  the  arguing  fee  is  to 
be  charged  instead  of  a  term  fee. 

But  when  the  costs  cannot  be  obtained  of  the  plaintiff,  the  defendant's 
counsel  may  charge  either  ihe  bill  of  costs  and  arguing  fee  only,  or  the  term 
fees  and  arguing  fee  only,  at  his  option. 

If  the  defendant  does  not  prevail,  his  counsel  or  attorney  is  to  charge  him 
term  fees,  as  atoresaid.  for  each  term.  If  the  cause  be  argued,  the  arguing 
fee  is  to  be  substituted  for  the  term  fee  at  the  term  ■when  the  argument  is 
had. 

For  arguing  a  case  in  the  common  pleas,  not  less  than  $10  ;  for  trustee's 
answer,  &c.,  where  he  has  no  effects,  S3  :  where  he  lias  effects  exceeding 
100  dollars,  kS  ;  for  a  surrender  of  principal  by  bail,  &c.,  S5. 

Suprrme  .Judicial.  Court.  For  plaintiff's  counsel  or  attorney.  When  the 
plainiiff  prevails,  the  counselor  attorney  is  to  charge  llie  bills  of  cosls  in  the 
court  of  common  pleas,  and  in  the  supreme  court,  and  fees  of  arguing  to 
the  court  or  jury,  or  both,  as  the  case  may  be. 


ucsB  immY 

108  APPENDIX. attorney's   FEES. 


When  the  plaintiff  does  not  prevail,  the  counsel  or  attorney  is  to  cliarM 
the  sums  paid  in  the  prosecution  of  the  suit,  and  term  fees,  double  the 
amount  chargeable  as  term  fees  in  the  common  pleas,  and  also  the  fees  of 
arguing  the  cause  either  to  the  court  or  jury,  or  both,  as  the  case  may  be. 

DefrndanOs  cnunsel  or  attorney.  When  the  defendant  prevails,  the  coun- 
sel or  attorney  is  Id  charge  the  bill  of  costs  and  the  fees  for  arguing  the 
cause  'to  the  court  or  jury,  or  both,  as  the  case  may  be,  and  term  fees 
double  the  amount  chargeable  in  the  court  of  common  pleas. 

When  the  costs  cannot  be  obtained  from  the  plaintiff,  the  defendant's 
counsel  may  charge  the  bill  of  costs  and  arguing  fee  only,  or  the  term  fees 
and  arguing  fees  only,  8t  his  discretion. 

When  the  defendant  does  not  prevail,  the  counsel  or  attorney  is  to  charge 
term  fees  double  the  amount  chargeable  as  term  fees  in  the  common 
pleas,  and  instead  of  term  fee,  the  fees  of  arguing  at  the  term  ■when 
argument  is  had. 

For  arguing  a  cause  to  the  jury  in  the  supreme  judicial  court,  for  plain- 
tiff or  defendant,  not  less  than  .*20  ;  for  arguing  a  question  to  the  court,  for 
plaintiff  or  defendant,  not  less  than  $'20  ;  but  when  the  matter  in  dispute 
does  not  exceed  100  dollars  in  value,  the  counsel  shall  charge  for  arguing 
the  cause  what  il^^^hall  deem  a  reasonable  compensation  ;  lor  divorce, 
for  naturalizatio^^^HU>cess  of  partition,  not  less  than  $:20,  exclusive  of 
clerk's  dues.       ^^^^V 

References,  Sfc.  IrtPnTarbitratioiis,  and  in  references  entered  into  in  the 
supreme  judicial  court  and  court  of  common  pleas,  and  rules  entered  into 
before  a  justice  of  the  peace,  the  compensation  is  to  be  regulated  according 
to  the  rate  of  fees  established  as  to  the  courts  of  common  pleas  and  the  su- 
preme court,  as  to  arauiiig  cases  ;  and  for  the  advice  and  preparatiim  for 
the  hearing,  a  reasonable  charge  to  be  made,  according  to  the  spirit  ot  these 
rules. 

After  the  term  when  a  cause  is  referred,  and  before  the  term  when  the 
report  is  made,  the  counsel  or  attorney  of  the  plaintiff,  and  the  counsel  or 
the  attorney  of  the  defendant,  shall  charge  half  term  fees  only. 

Cullfcting  money.  For  attention  and  responsibility  of  the  attorney  or 
counsel  in  effecting  a  settlement  with  the  debtor  before  judgment,  and  ob- 
taining the  money  due,  or  for  obtaining  execution  and  commining  the  same 
to  a  proper  ofhcer,  and  receiving  the  money  from  him  or  from  the  debtor, 
and  paying  the  same  over  to  the  creditor,  when  the  amount  does  not  ex- 
ceed one  thousand  dollars,  a  commission  of  two  and  one  half  per  cent,  is 
to  be  charged,  and  for  every  hundred  dollars  above  one  thousand  dollars,  a 
commission  of  one  dollar. 

When  mortgaged  premises  are  sued  for,  and  the  money  is  paid,  the  like 
rate  of  commission  is  to  be  ch:irged  ;  but  if  the  demandant  receives  his 
writ  to  take  possession,  or  when  the  judgment  recovered  is  to  be  saiisfied 
by  a  levy  on  real  estate,  a  reasonable  compensation  shall  be  charged  and 
received. 

If  the  plaintiff  thinks  fit  to  take  the  execution  from  the  attorney  or  coun- 
sel, and  disposes  of  the  same  himself,  he  shall  be  charged  and  required  to 
pay  the  same  per  cenlage  as  if  the  attorney  had  collected  the  money,  or 
done  other  duty  as  to  the  execution,  which  would  entitle  him  tQ  a  commis- 
sion, according  to  the  foregoing  provisions. 

Where  money  is  collected  for  a  client,  who  lives  out  of  the  Common- 
wealth, a  commission  of  three  per  cent,  shall  be  charged  to  him  upon  the 
amount  received. 

When  the  plaintiff  cannot  obtain  any  benefit  from  his  suit,  the  counsel  or 
attorney  may  charge  the  bill  of  costs  only. 

These  rules  are  intended  to  establish  the  lowest  compensation,  and  not 
to  restrict  gentlemen  from  taking  higher  compensation  in  cases  of  difficulty 
or  masniiude  ;  and  these  rules  are  not  to  apply  to  cases  not  exceeding 
twenty  dollars. 


ONE  OF  THE  MOST  USEFUL  BOO^^  

CLERK,  AND  FARMER,  EVER  PRINTED 


000  606  506 


1 


BUSINESS   MAN'S   ASSISTANT:     \ 

By  llie  Author  of  the  "Landlord's  and  Tenant's  Assistant,  —  "Laws  of  the  Sea,"  —  \ 
"  Shipper's  and  Carrier's  Assistant,  and  Insurer's  Guide."  i 

[54th  Edition,  revised  and  improved.]  } 

This  Work  contains  Forms  and  Rules  of  Law  for  all  the  various  Instruments  > 
in  common  Business  Transactions,  and  will  enable  a  man  of  common  sense  tol 
make  out  his  Contracts,  Assignments,  Bonds,  Deeds,  Mortgages,  Releases, S 
'otitions,  &c.,  without  the  aid  of  an  attorney.  It  also  contains  an  Abstract  of> 
iie  U.  S.  Patent  Laws,  with  Instructions,  Petitions,  Specifications,  Improve- 1 
ments,  Assignments,  Surrenders,  Caveats,  Fees  ;  —  Contracts  and  Specifica-  *> 
tions  for  constructing  Railroads, —  and  numerous  valuable  and  useful  Tables,!' 
&c.  &c.  —  Price  25  Cents. 

The  undersigned  having  examined  the  "  Business    Man's  A^mjANT,''  Jiiicl  it  to  be  a] 
valuable  auxiliary  in  Buiineis  lyamactj' 

'  Josiali  Bradlee  &  Co., 

I  Hawses,  Gray  &  Co., 

I  Joshua  Sears, 

'  Henshaw,  Ward  &-  Co., 

;  Hallett  &  Blake, 

[  Fisher  &  Co., 

I  Hinkly  &  Drury, 

'  Samuel  Greele, 

I  Smith  &  Lougec, 


r^ell,  Server  &.  Co., 
n  Tyler, 
Coolidge  &  Haskell, 
Ammidown, Bowman  &  Co 
Wetherell,  Cragin  &.  Co., 
J.  C.&W.  H.Hicks, 
Chas.  Bartlett, 
Barnabas  Davis, 
M.  P.  Wilder,  Jr. 


Thos.  G.  Lobdell, 

John  S.  Ty 

John  A.  Ferris, 

Ewd.  D.  Peten*  &,  Co., 

Hunting  &,  Tufls, 

J.W.Blake, 

Wm.  H.  Prentice  &  Sons, 

Horton,  Cordis  &,  Co., 

J.  T.  Hay  ward  &  Co., 

p  From  the  Boston  Ctdtivalor. — "  This  little  work  is  of  great  value.  It  contains  forms  and  i 
)  rules  for  all  the  various  instruments  and  documents  in  common  business  transactions,  and 
}  will  enable  a  manof  coramon  sense  to  attend  to  business  of  this  kind  without  the  aid  of  an  ' 
^attorney.  Besides  its  serving  as  a  v.aluable  guidtf,  it  is  equally  valuable  as  a  prompter, ' 
)  showing  what  the  laws  require,  which  will  sometimes  save  a  man  hundreds  or  thousands  ' 
f  of  dollars,  as  many  are  not  aware  of  legal  requirements,  and  lose  much  for  want  of  a  J 
•■  timely  hint." 

''  THE 

iLANDLORD'S  &  TENANT'S  ASSISTANT.; 

I  [In  this   Sixth,  and  improved  edition,  will  be  fotmd  the  Rights,  Duties,  and  Ijiabilities  o< , 

'       Landlords  and  Tenants,  with  Directions  and  Special  Covenants  for  both,  in  relation       ? 

I  to  Tenancies,  Repairs,  Water,  Fixtures,  &c.,  ice.,  never  before  published.]  ) 

This  is  truly  what  it  purports  to  be,  a  Landlord's  and  Tenant's  .Assistant , 
and  ought  to  be  in  the  hands  of  all  who  let  or  hire  real  estate.  We  doubt,  it  \ 
there  is  a  landlord  or  tenant  who  has  not,  from  sheer  ignorance  of  his  rights  as  < 
this  book  shciws  them  to  him,  lost  money  enough  to  buy  a  thousand  copies.  It  J 
also  furnishes  the  Rules  of  Law  in  relation  to  Division  Fences  —  Partition  i 
Walls  i^  Ancient   Lights  —  Highways  —  Private    Ways,   Sfc.    fyc.  ;    and  ' 

forms  for  Leases  of  Rooms,   Houses,  Farms,  Assignments,  IVotices  to  Quit,  \ 

'.  Sac.  &c.  —  Price  2-5  Cents. 

The  undersigned  having  examined  the  work  entitled  "  The  Landlord's  and  Tenant's! 
Assistant,"  recommend  it  to  Landlords  and  Tenants  as  a  work  well  adapted  to  their  j 
wants,  and  which  will  save  them  much  trouble  and  litigation : — 


John  S.  Tyler,  Ins.  Broker, 
T.  J.  Lobdell,  Broker, 
S.  G.  Williams,  do. 
H.  L.  Stone,  Commission 

Merchant, 
Benjamin  Bangs,  Merchant 
Eliphalet  Baker,  do., 
Leonard  Foster,  Esquire, 


Hinkly  &  Drury,  Builders, 
S.  &  J.  Guild  &  Co., 
Robins  &  Allen,  Auctionrs. 
Adin    Hall,    Real   Estate 

Broker, 
H.  Dawes,      do., 
Samuel  Coverley,      do. 
Aaron  Dow,       do., 


Brackett  &  Rowe,      do., 
John  Hammond,     do., 
Chas.  M'Intier,      do., 
Thomas  P.  Hawkes,      do., 
Pearmain  &  Hall,     do., 
Wm.  B.  May,      do., 
David  Holbrook,      do., 
Samuel  Rice,     do. 
[See  2d  and  ithpages  of  cover. 


LAWS    OF    THE    SEA: 

I  w  I.,.,.,..,..  . .  .-  -;.i.ian,  Fislierman  or  Coaster,  should  go  lo  sea  without  this  book.] 

i The  Seaman's  Assistant;  Coaster's  and  Fisherman's  Guide,  and| 
Master's  and  Mate's  Manual,  ; 

This  work  ha«  bten  compiled  Avith  oreat  care  and  alteiition.  and  is  an  au- 
thentic  Guide  in  all  uuUter.  touching  the  Rights  and  Duties  ot  Officers 
and  Seamen,  as  well  as  the  Li  ab?lities  of  Masters  m  relation  to  Ship,  , 
CavEo,  Freight,  Hypothecation,  Passengers,  Src.  ^c.  ^.  ,     _  ^   „„j  , 

It  contains\aVs  of  great  importance  to  Masters,  Seamen,  Fishermen,  and  ) 
tWe!^    "onTeofwhi^'chhavebeA.  but  lately  enacted,  and  cannot  be  found  . 
.  in  any  Shipmaster's  Assistant  or  other  maritime  work.  v:^t.,«nin.r  ' 

S  Also  Tables  to  calculate  Seamen's  \\ages;  Navy  RaUon ;  \ictuaUmg  , 
^  Vessels;  Rules  for  Dunnage  ;  Ready  Reckoner,  &c.  &.c. 

V  CERTIFICATES    OF    PERSONS    WHO  HAVE    EXAMINED    THE   WORK  : 

S         From  Hon.  Wm.  STfucis,  {of  the  Firm  of  Bryant  &  Stukgis.) 

b      "  Bolton  Jan.  1-5   1-;  ,.--aueslof  the  Author,  Mr.  I.  R.  Butts,  I  have  looked  ; 

>  into  a  namDhle  e  it  il  'C  Sea/  and  ihougb  I  do  not  pretend  to  such  knowledge  ; 
?  of  man  "me  law  as  "^  nt  giving  an  opinion  as  to  the  correct.tess  of  legal  po.uts  , 
.  anS^oi  s  Aereiu  scilanl,,  yd  I  do  not  hesitate  to  say  that  it  conlams  much  useful  and  , 
'  VI  uSXrnVat  o  1  ,i,ai  should  be  readily  accessible  lo  ever>'  one  engaged  in  aautical  pur-  _ 

^?  ..m,d     know     ot  how  or  where  it  caiUje  obtained  in  a  more  condensed  lonn  than  in 

<  fht  Dub  fcatt"ri  deem  t  veo"  d^irableMat  Sailors  and  Officers  should  have  sufficient  ; 
UtwTeSeor.i;eiJ»respcetive\htsa.id  duties  ,o  aid  and  guide  *f/"  !»  ^l^^t-K^/f -^  >  ■ 

<  \vhen  legal  advice  cannot  be  promptly  obtained.  w  M.  orvKixis. 

'  From  Joseph  Balch,  Rmi.,  Presided  of  the  Merchants  Instance  Company. 

<  "  Mr  I5UTI*  -Dear  Sir:  I  have  examined  your  publication  enutled  '  La^ys  of  ilie  Sea  ' 
^  audi  appearstomrtocontaitiafairstatenicnt-ofthel^^^ 

''  it  treats  -the  mart  valuable  for  the  references  to  tut  auihonlits  on  xuhich  it  u  fovndzd.    1   . 
'■  rau«  remark!  however,  ihat  1  do  not  co.i^der  myself  competent  to  judge  of  its  merits  gener- 
^  alh  •  but  lo  far  as  I  do  know,  I  think  it  a  very  useful  Book  for  every  Slnpniaster.  and  that 
^  u"geneKs?ribuiion  will  dJmuchgoffd.        "  Vourmost  ob't,        "Josbph  Balch.' 
\  Fro7rt  i?ei;.  Edward  T.  Taylor,  Seaman'' s  Preacher,  Boston. 

^      "  As  far  as  1  have  read.  I  fully  concur  with  the  above  «<=onitnendauom  ^   ^^^^^^^  ,, 

>  Jas    n    Adams.  President  %i.\\Xm.  E.  Coffin,  Merchant,       .Lewis  &  Clapp,  Merchants, 

>  England  Marnc  Ins.  Co.,       Henry  G.  Andrews,     do.,         Baker  &  Alornll,        do. 
CaptaC/ohn  Williams.  Pr'es   Capt.  Wm.  C.Barstow.Treas  gf '  ^^"j^  °«pVis£e" 

i      roaster's  Marine  Ins.  Co.        •    East  Hostitm  Co., .  i Captain  A.^a  irisuee, 

^  John  <^  Tvler  1 .5  Broker,       Lombard  &  Hall,  Merchants,    Captaui  Elijah  Crosby, 

\  Cam  Ak leu  G  in  rd,  Ins.  Agent  Howes  &  Crowell,     do.  Caplam  Ba.ley  Lnring, 

'^  JuTon&  Co    Merchants,         1  John  R.  Dow  II  Co.     do.,  .Caleb  S.  Carter,  Manne  In- 

<A.r&WG.  Lewis     do.      |j.Bowker,Jr.,Merchani,  surance  Agent. 

^  From  Pec.  Phineas  Stowe,  Seaman's  Preacher,  Bo.ftoii. 

^       "  Mr.  BvTTs.-near  Sir:  Itatlords  me  much  pleasure  to  give  niv  test::  .ro, 

S  the  very  valuable  work  prepared  by  you,  entulea    Laws  of  ihe  Sea.      I .  ^-ca- 

<  men  will  annreciale  your  noble  object,  and  so  will  the  bailor.  No  st  ^  m  i)t 
■:  wi  1  ou  h.rb^ok  It  willprove  a  greater  blessing  to  him,  I  p.esume,  than  the  goldmines 
;^  of  California.    .Alany  disputes  may  be  prevented  by  lollowing  the  directions  ofthlMWOrk. 

■:  From  Pro.  J.  P.  KoBiNSON,  Missionary  to  Seamen  in  the  Port  of  J^on   ; 
'.      «  Mr  I   R  BUTTS.-Dear  Sir:  I  have  glanced  over  your  little  book,  '  Laws  of  thfl«ca,   , 
'>  -md  am  satisfied   from  the  examination  1  have  been  able  to  give  it,  that  it  will  prove  a  valu. 
'  able  book  for  every  seaman.     AVilh  the  '  Laws  of  the  Sea'  in  his  d.est,  eadli  seaman  for 
i  hfrnselfwinLtowwhaUns  rights  are,  and  cnscquenllv  be  more  disposed  to  respect  the ' 
\  r ighu  of^  hers.    Its  tendency  will  be,  to  save  much  useless  and  expensive  litigation. 


\      Persons  reraiilin"  SI.  by  mail,  to  1.  ftT  Butts,  Boston,  (pre-pa.rf  )  from  any  part  of  , 
'  thrSd  Smtes,  will  receive  five  copies  of  either  of  the  above  books  free  of  any  charge  - 

r.iinostasre      Sinsle  copies  mailed  on  the  receipt  of  •-'•'>  cents,  posl-paitl. 
■■       Abo  for  Sale  alabo".-,  a  "  Prayer  B',ok-  desi^-ned  for  Odd  Fel  nws'  Lodges,  which  can  ; 
^o  be  used  by  the  Sons  of 'J-emperance,  &c.  The  "  AVi"  £«?/««rf  Economual  Hovsekeepn  r' . 
<<  3%r^V''U«;cW>v«<>«  BoU,-  forthc  use  oi  Eounders,  Dentists,  Turners,  and  Fm.sh-  ,. 
'".ra-!*  Britannia  and  German  Silver.  — never  before  published.  ,„„„„ 

Book  AGEXTs.-Book  Agents  are  wanted  to  sell  these  works.    Capable  Agents 
Voin  !if3  to  $.3  per  day. Liberal  dhqounl  made  to  those  who  bity  to  seU  again.    . 


